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Adams, J.
(dissenting). On July 1, 1963, a new supervisor of Burton township, Genesee county, brought this suit to recover money that defendants, members of the Burton township board prior to April, 1963, had obtained from the township.
Beginning April 1, 1946, the electors of the township board annually voted a fixed expense allowance to board members. CL 1948, § 41.75 (Stat Ann 1961 Bév §5.67) provides in part:
“No accounts shall be audited by such board, except such as are made in writing, giving the particular items of such account, and verified by oath or affirmation of the claimant or some one in his behalf.” (Emphasis supplied.)
Expense allowances were paid from April, 1946, until April, 1957, even though the members filed no itemized accounts.
On April 15, 1947, the township board created four commissionerships which were designated as health officer; purchasing agent and fire commissioner ; public safety and park commissioner; and chairman of study commission; and later designated as commissioner of fire; commissioner of police; commissioner of buildings, parks and grounds; and commissioner of building inspection, zoning regulation and enforcement. These positions were paid expense allowances or salaries that ranged from $150 a year in 1947 to $175 a month in 1963.
Beginning in 1957, at the annual town meeting the electors, on motions made by defendant board members, authorized appointment of and salaries for commissioners. Appointments were then made by the supervisor with board approval. Electors are authorized by statute to determine the compensation of members of the township board. CLS 1961, §41.95 (Stat Ann 1961 Rev §5.82).
Prior to April, 1959, the township treasurer received his statutory collection fee for the collection of taxes. Until April, 1957, the township board also voted and paid him a fixed expense allowance and an annual salary which was contrary to the requirement of CL 1948, § 211.44 (Stat Ann 1950 Rev § 7.87) that:
“All fees collected by the township treasurer in townships where the treasurer shall receive a salary, shall be credited to the contingent fund of the township.”
In April, 1959, the treasurer was placed on a salary in lieu of fees. CL 1948, §§ 211.44, 211.44a (Stat Ann 1950 Bev §§ 7.87, 7.88), as amended.
At the conclusion of plaintiff’s case, defendants moved for a judgment as to all claims occurring prior to July 1, 1957, because of the running of the six-year statute of limitations. The trial judge found that the expenses were matters of public record and granted the motion. Defendants then moved for judgment as to the remainder of the claims. The trial judge found there was no incompatibility in' holding both the offices of trustee and commissioner and granted the motion. The Court of Appeals affirmed. Burton Township v. Speck, 1 Mich App 339. Leave to appeal was granted by this Court.
I.
Was the statute of limitations suspended?
Plaintiff maintains that the statute of limitations does not operate when the same person is on both sides of a claim and that operation of the statute was suspended because the former supervisor represented both sides of these claims. This rule has been applied in many cases in other jurisdictions. See 54 CJS, Limitation of Actions, § 111, p 16; 34 Am Jur, Limitation of Actions, § 114, p 93.
A corollary of the rule was applied in Parks v. Norris, 101 Mich 71, where it was held that until an administrator of an estate was appointed no person was authorized to bring an action for the estate.
Until plaintiff was elected to the township board, the board members were all participants in the actions upon which this suit is based. Of their number was the supervisor who, by law, was the township agent for the transaction of its legal business. CL 1948, § 41.64a (Stat Ann 1961 Rev § 5.56). He was on both sides and obviously would not be disposed to sue himself.
Defendants say, however, that since any taxpayer could have brought a suit on the authority of CL 1948, §129.61 (Stat Ann 1958 Rev § 5.3281), there were people who could have sued and so the statute of limitations continued to run. CL 1948, § 129.61 provides:
“Any person or persons, firm or corporation, resident in any township or school district, paying taxes to such political unit, may institute suits or actions at law or in equity on behalf of or for the benefit of the treasurer of such political subdivision, for an accounting and/or the recovery of funds or moneys misappropriated or unlawfully expended by any public officer, board or commission of such political subdivision. Before such suit is instituted a demand shall be made on the public officer, board or commission whose duty it may be to maintain such suit followed by a neglect or refusal to take action in relation thereto. Security for costs shall be filed by the plaintiff or plaintiffs in any such suit or action and all costs and expenses of the same shall be paid by the person or persons instituting the same unless and until a recovery of such funds or moneys be obtained as the result of such proceedings.” (Emphasis supplied.)
The requirements of this statute are onerous. ■ Any finding’ that the permission granted to a taxpayer to sue provided a substitute party for the supervisor, the township’s designated agent, must meet all possible objections.
In Nahikian v. Mattingly, 265 Mich 128, an individual shareholder’s right to bring suit on behalf of a corporation against its president did not cause the statute of limitations to run where the president dominated the corporation, was in a position of trust, and held assets that belonged to the corporation. The principle of estoppel was relied upon in Nahikian with the result that a small shareholder was not required to assert a claim within the statutory time because he could only minutely benefit. In the case of the ordinary taxpayer, his interest is even more minute. Such minimal interest is one reason why the supervisor’s duty to represent the township should not be shifted.
Even if a taxpayer’s right to sue did continue the running of the statute of limitations, the statute was tolled in this case because there was an insufficient disclosure for such a suit. The trial judge and the Court of Appeals found that because the public had access to the minutes of the annual town meeting and the township board meetings, and because taxpayers were allowed freely to attend all meetings, there was a full disclosure. However, as already noted, CL 1948, § 41.75 (Stat Ann 1961 Rev § 5.67) provides:
“No accounts shall be audited by such board, except such as are made in writing, giving the particular items of such account, and verified by oath or affirmation of the claimant or someone in his behalf.”
It also provides:
“All accounts audited by such board shall be filed and preserved by the clerk, for the inspection of any of the inhabitants of the township or of any persons liable to pay taxes therein, and shall be produced at the next annual township meeting and there read by him, if the same shall be required by the meeting.”
No itemized and verified accounts were filed so as to be available for inspection. Yet the township records gave every appearance of regularity on their face, being open records that were presumably kept in accordance with the law.
While, as a general rule, concealment must he designed to mislead and must be accompanied by affirmative steps to that end (McNaughton v. Rockford State Bank, 261 Mich 265, 268, 269), there is an exception as to one in a fiduciary or confidential relationship. Johnson v. Provincial Insurance Company of Toronto, 12 Mich 216, 222, 223 (86 Am Dec 49); Tompkins v. Hollister, 60 Mich 470, 479; Barrett v. Breault, 275 Mich 482, 491; Comment note.— What constitutes concealment which will prevent running of statute of limitations, 173 ALR 576, 588. In such a case, silence can amount to fraudulent concealment. Barrett v. Breault, supra.
A public office is a public trust. Defendants were public officers. They owed, at the least, a duty of loyalty to the public no less than that of an agent to his principal. People, ex rel. Plugger, v. Township Board of Overyssel, 11 Mich 222, 225; 43 Am Jur, Public Officers, §261, p 78; Comment note, supra, p 606. The duties of a township board are: (1) to meet annually (CL 1948, §41.72 [Stat Ann 1961 Eev § 5.64]), (2) to hold at least one regular meeting every three months (CLS 1961, § 41.72a [Stat Ann 1961 Eev § 5.64(1)]), and (3) to examine and audit accounts (CL 1948, § 41.73 [Stat Ann 1961 Eev §5.65]). The duty to examine and audit accounts was that of the board, not of a taxpayer. The township board, having been appointed the watchdog of the township purse with the duty to audit correctly all accounts, may not escape the consequences of its failure to perform that duty, particularly as to its own expenses and salary, merely because a taxpayer might sue. To come to such a result would only encourage dereliction of duty in public office.
In any event, a public record does not necessarily cause the statute to run if it is insufficient to put the taxpayers on notice. This Court has held:
“We recognize the general rule that the running of the statute will not he postponed if the defrauded person may discover the fraud from public records. This rule does not apply to a person while a fiduciary relationship exists and nothing occurs to indicate the necessity for investigation.” Heap v. Heap, 258 Mich 250, 263.
Also, see Annotation, Public records as notice of facts started running of statute of limitations against action based on fraud, 137 ALE 268. Here, the public records all purported to he proper on their face, correctly examined and audited by defendants, and only careful examination of them by an accountant together with legal advice revealed the significance of the activities now challenged.
Divided compensation, at the least, presents a delusive picture. For example, trustee Joseph P. Eichvalsky was on the board until April, 1963. He received $2,400 as a trustee, hut he received $16,641.80 as a commissioner and $1,241.80 for expenses. While his salary appears to be only $2,400, his total compensation was $20,283.60. Because the defendants were fiduciaries whose positions demanded of them the utmost rectitude, their actions constituted fraudulent concealment within the exception of the statute. CLS 1961, § 600.5855 (Stat Ann 1962 Eev § 27A.5855).
PA 1929, No 52, as amended (CL 1948, § 14.141 et seq. [Stat Ann 1961 Eev § 3.241 et seq.]), authorizing suits by the attorney general or a prosecutor, has no application here since a petition signed by at least 25% of the registered electors of the township is required to initiate such action.
II.
Could the commissioner ships he created?
Defendants would now designate the position of a commissioner as “committee chairman” and would pose the above question as follows:
“May a township Board designate certain of its members as commissioners to act as an arm of the board in administering the affairs of the township ?”
The question assumes that the office of commissioner was not a distinct office but merely an adjunct to the board.
The board’s authority for the creation of a public office with separate salary attached, by whatever title designated, must be found in either the Constitution or statute. 37 Am Jur, Municipal Corporations, § 226, pp 856, 857; 62 CJS, Municipal Corporations, § 465, p 896. Under the 1908 Constitution, an organized township had no power except that prescribed by law, Hanslovsky v. Township of Leland, 281 Mich 652, 655; and a township board had no power by constitutional mandate, deriving its sole authority from the legislature, Township of Dearborn v. Dearborn Township Clerk, 334 Mich 673, 685.
The Court of Appeals found authority for the creation of these commissionerships in CL 1948, § 41.4 (Stat Ann 1961 Rev § 5.4), which provides:
“The inhabitants of each township may, at any legal meeting, by a vote of the qualified electors thereof, make all such orders and by-laws for determining the time and manner in which cattle, horses, swine, sheep and other animals shall be restrained from going at large in the highways, and for directing and managing the prudential affairs of the township as they shall judge most conducive to the peace,, welfare and good order thereof.” (Emphasis supplied.)
This section has been carried unchanged from BS 1846, ch 16, § 4.
Spaulding v. City of Lowell (1839), 40 Mass 71, is the leading decision defining and describing the meaning of “prudential affairs” as the term has been used with regard to municipal government. The supreme court of Massachusetts said, pp 77, 78, 79:
“In the case of Willard v. Newburyport, above cited, [29 Mass 227] some attempt was made to describe what is understood to be ‘prudential concerns-,’ by stating that it embraces those subjects affecting the accommodation and convenience of the inhabitants, not otherwise specifically provided for, which have been placed under the jurisdiction of towns by statute or by usage. It may be suggested that referring to usage as a source of this power, is still leaving subjects open to doubt. It does so; but as there are some subjects which have long been regarded as within the authority of towns, not made so by statute, and as such powers have never been ques^ tioned, there is no authority whence they can be derived but usage. * * * The same statute [the provincial act of 1692] gives to towns the authority to make orders and by-laws, ‘for managing and ordering their prudential affairs of such town, as they shall judge most conducing to the peace, welfare and good order thereof.’ From this and ■ various other legal provisions, we think it will be found that towns were not originally incorporated with specific and enumerated powers; but that the inhabitants and settlers of each township, as organized bodies, adopted regulations for their common convenience,, and when they were incorporated, or rather recog-' nized by general laws, as established corporations, the powers which they had thus been used and accustomed to exercise, were referred to, and con-, firmed, under the very broad and comprehensive term, ‘prudential concerns.’ *■ * *
“And in considering this subject of usage, it is proper to add, that it is not a casual or occasional exercise of a power, by one or a few towns, which will constitute such a usage; but it must be a usage, reasonable in itself, general amongst all towns of like situation, as to settlement and population, and of long continuance.” (Emphasis supplied.)
The phrase “prudential affairs” was intended to empower the electors to do those things necessary to effectuate the lawful powers of the township. See 35 Words and Phrases (Perm ed), Prudential Affairs of Town, p 6. The term is more one of limitation than a grant of authority. Spaulding v. City of Lowell, supra.
Defendants state that Burton township has a population of approximately 36,000 people and the commissionerships are necessary because of the “complexities of modern metropolitan township governments.” No long and established usage is shown here.
Under PA 1951, No 57 (CLS 1961, § 41.751 et seq. [Stat Ann 1958 Rev § 5.2640(21) et seq.]), the State legislature has provided alternative ways to meet the problems of police and lire protection in townships. Whatever procedure is adopted, action by township ordinance is required. No township ordinance was passed here.
Under PA 1931, No 271, § 1, as amended by PA 1949, No 33 (CLS 1961, §41.441) and PA 1962, No 33 (Stat Ann 1965 Cum Supp § 5.271), the State legislature provided for township park commissions. The procedure for a park commission must be initiated by 50 freeholders and taxpayers. A park commissioner’s compensation is $1 for each meeting and mileage of 10$ per mile (CL 1948, § 41.443 [Stat Ann 1961 Rev § 5.273]). No such procedure was initiated here by freeholders and the salaries were¿ of course, considerably in excess of $1.
These statutes pertaining to police and fire protection and to township park management, together with detailed legislation providing for township zoning (CL 1948 and CLS 1961, § 125.271 et seq. [Stat Ann 1958 Eev and 1965 Cum Supp § 5.2963(1) et seq.]) evidence a clear intention by the legislature to authorize township handling of such matters in specific ways. They are the grant and limitation of a township’s powers.
CL 1948, § 41.96 (Stat Ann 1961 Eev § 5.83), relied upon by the Court of Appeals, cannot sustain the payments to the commissioners since it only authorizes payment for services rendered by township officers “in the duties of their respective offices.” In the case of the commissionerships, there was no legally qualified office. The payments may be recovered.
III.
Were the offices of commissioner and township board member incompatible?
Since neither the township electors nor the board had authority to create the commissionerships, this question need not be answered. Had the authority to create the offices existed, quite clearly they would have been incompatible with any office on the township board, since there is universal agreement that, when the holder of one office can pass upon the salary of another office or otherwise supervise that office, the two are incompatible. Weza v. Auditor General, 297 Mich 686, 688; OAG 1943-1944, p 693; OAG 1947-1948, pp 658, 659; 1 OAG 1959-1960, p 113; 2 OAG 1959-1960, p 12; OAG 1961-1962, pp 77, 392. In this case, since the defendants either set their own salaries as commissioners or were instrumental in doing so, the office of commissioner would be incompatible with that of board member.
. The decision of the Court of Appeals should he reversed. The case should be remanded to the circuit court for further proceedings in accordance with this opinion. Costs to appellant.
Dethmers, and Souris, JJ., concurred with Adams, J.
O’Hara, J.
I am in respectful disagreement with Mr. Justice Adams.
The whole record in this case bespeaks a course of conduct openly adopted, followed without deviation, over a period of years and approved in public meetings open to any electors interested in attending. This course of conduct is the antithesis of the definition of fraudulent concealment laid down in the De Haan Case cited by the Court of Appeals.
I would affirm the Court of Appeals by adoption of its opinion as that of this Court and tax no costs.
T. M. Kavanagh, C. J., and Kelly, and Black, JJ., concurred with O’Hara, J.
Smith, J., did not sit.
See CLS 1961, § 600.5813 (Stat Ann 1962 Rev § 27A.5813).— Reporter.
De Haan v. Winter, 258 Mich 293. | [
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North, J.
Plaintiff herein instituted suit in the common pleas court of Detroit against the defend ant, a limited partnership. Defendant entered a special appearance and moved to quash the summons on the ground that valid service had not been obtained. This latter claim was based upon the fact that service was obtained upon the resident manager of defendant’s Detroit office and not upon any of the individual members of the firm, all of whom resided in the State of New York. The motion to quash was denied. Defendant took no further part in the proceedings in the common pleas court, and plaintiff had judgment by default. Thereupon defendant filed a claim of appeal to which was attached an affidavit of its attorney stating “that such judgment is not in accordance with the just rights of said defendant and appellant as this deponent verily believes, and that Sutro Bros. & Co. conceive themselves aggrieved thereby and appeal therefrom.” After plaintiff entered his appearance in the circuit court defendant renewed its motion to quash the summons on the ground of invalidity of service. On hearing of the motion plaintiff contended that defendant had brought the case to the circuit court by claim of a general appeal, that this was tantamount to entering a general appearance in the case, and waived all defects in service of process. The circuit judge overruled plaintiff’s contention and dismissed the suit.
If plaintiff’s contention just above noted is correct, decision to that effect would be controlling and it becomes unimportant whether the service of process obtained was good or bad.
It should be noted that appeals from lower tribunals to the circuit court of Wayne county, that county having a population in excess of 500,000, are controlled by Court Rules Nos. 75 and 76 (1933). Section 5 of Rule No. 76 sets forth the form of a claim of general appeal from the court of common pleas to the circuit court. The procedure adopted by the defendant in perfecting its appeal to the circuit court was in accordance with this section. Clearly it was a general appeal. The affidavit filed in support of the appeal did not conform to the requirements of sections six and seven of the rule which are applicable for cases wherein questions formerly reviewed on certiorari or by special appeal (3 Comp. Laws 1929, § 16224) are sought to be reviewed in the circuit court. In such cases, as formerly on special appeal, it is necessary to set forth plainly and with particularity so much of the proceedings in the lower court as will disclose the manner in which the particular question of law sought to be reviewed arose and the merits of the claim of the appellant. Courtis v. Garrison, 148 Mich. 226; Osborne v. Osborne, 156 Mich. 413; Wright v. Russell, 19 Mich. 346. Nothing of that character appears in this record, hence the appeal to the circuit court must be held to be a general appeal only. Taking a general appeal from the justice court to the circuit court constitutes a general appearance in the circuit court and confers jurisdiction of the person, regardless of whether the court from which the appeal was taken had acquired jurisdiction of the person. Lapham v. Tarabusi, 247 Mich. 380; Wolf v. Cohen, 253 Mich. 691; Heap v. Heap, 258 Mich. 250.
It follows that the order of the circuit judge dismissing the cause must be set aside, and trial in the circuit court had upon the merits. The case will be remanded to the circuit court for that purpose. Costs to appellant.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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■Bushnell, J.
Thirty-three plaintiffs, who were later joined by ten others, all employees of defendant company, sought the aid of a court of equity in enforcing their claims for various balances due as wages. The bill of complaint, filed February 2,1932, prayed for the appointment of a receiver under the provisions of 3 Comp. Laws 1929, §§ 15930, 15931, and an accounting. On February 6, 1932, an order to show cause why a receiver should not be appointed was heard and denied. A stipulation between the attorneys for the parties was filed on May 5th, by which it was agreed that the- equity court retain jurisdiction, the cause to be assigned to a circuit court commissioner for the taking of proofs.
Exceptions were taken to the findings of fact and conclusions of law of the commissioner, and the matter was then heard by the circuit court, resulting in a decree in a sum totaling $1,288.18 in favor of 27 of the plaintiffs. Individual amounts were found to be due, ranging from $5.26 to $112.83. Fifteen of the awards were under $50 and the remainder, with one exception, under $100.
Upon argument here, the question of the trial court’s jurisdiction sitting in equity was raised sua sponte. In Lamberton v. Pawloski, 248 Mich. 330, we questioned, on our own motion, the propriety of the trial court’s acquiescence in a stipulation that it determine an issue already pending in an action of ejectment, where jurisdiction was obtained by a bill to quiet title. In that case the decree below was affirmed by a divided court. It is most desirable that any uncertainty as to the right to confer equitable jurisdiction by stipulation be removed.
If the claims had been asserted in separate suits at law, none of them could have been appealed to this court without leave. Court Rule No. 60 (1933); 3 Comp. Laws 1929, § 15491. At least 15 of them could not have been appealed from the common pleas court of the city of Detroit to the circuit court without leave. Act No. 475, Local Acts 1903; 3 Comp. Laws 1929, § 16372, and Court Rule No. 76, § 6 (1933). We are unwilling to place the stamp of approval on a practice that will permit any two or more groups of litigants to invoke the aid of the equity court by the will or wish of the parties. As stated in Justice Potter’s opinion in Lamberton v. Pawloski, supra, jurisdiction of the subject-matter is governed by law and cannot be conferred by consent, and it is the duty of the court to raise the question of jurisdiction on its own motion.
Equity has jurisdiction to avoid a multiplicity of suits, but as stated by Justice Fead in Salisbury v. City of Detroit, 258 Mich. 235:
“The existence of a number of independent actions at law does not constitute the multiplicity of suits which confers equitable jurisdiction,” citing Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654).
The decree is reversed and the bill of complaint is dismissed, without costs.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Butzel, and Edward M. Sharpe, JJ., concurred. | [
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Butzel, J.
On January 2,1940, Charles B. Bohn of Grosse Pointe Park, Michigan, as seller, entered into a written contract with Howard J. Stoddard, of Lansing, Michigan, defendant herein, as buyer, for the sale of large blocks of stock in the First National Bank of Port Huron, First National Bank of Battle Creek, First National Bank & Trust Company of Grand Rapids, Lansing National Bank and Saginaw State Bank, for the sum of $231,858.77, to be paid with interest on or before three years from the date of the contract and for which amount Stoddard gave his note to Bohn and pledged the stock as security. The contract superseded a previous one entered into on April 13, 1937.
On June 10, 1940, Stoddard entered into an agreement with Joseph H. Brewer, now deceased, of whose estate plaintiff is executor. It recited that previous to the contract of January 2,1940, between Bohn and Stoddard, Joseph H. Brewer, plaintiff’s decedent, had an agreement with Stoddard under the terms of. which decedent, at his election up to January 2, 1944, might join in the purchase of the bank stocks being acquired from Charles B. Bohn by furnishing one-half of the funds necessary to purchase the stock, that the decedent and Stoddard would share and share alike in the joint venture of acquiring bank stocks, and in the operation and development of the banks, whether they be operated as separate units or be consolidated, and that the profits and losses of such joint venture and the compensation of the parties for services in connection therewith should be divided equally. It further recited that it was the intention that the rights of decedent should not be modified or affected by this agreement of January 2, 1940, between Bohn and Stoddard, and that it was mutually agreed as follows :
“1
“First party agrees that his rights under said contract between himself and said Charles B. Bohn, dated January 2, 1940, are held by him subject to his agreement with second party that second party shall have the right at his option up to January 2, 1944, to acquire one-half of the shares of bank stocks that may be acquired by first party under said contract between him and. Charles B. Bohn dated January 2, 1940, by payment of one-half of the net investment of first party in said stocks plus interest at the rate of three per cent per annum to January 2, 1944, upon any payments made by first party under said' contract prior to that date, the acquisition by the party of the second part to be on the proportionate basis which the five above-mentioned stocks bear to each other.
2
“It is agreed between the parties hereto that whether said banks shall be operated as separate units or shall be merged or consolidated into one or more units, the parties hereto shall share equally in the control of said bank or banks to the extent that they, or either of them, shall be able to control and manage said bank or banks, and they shall share equally in the compensation or salaries received by them, or either of them, as officers or as an officer of said bank or banks, until said stocks to be acquired under said contract dated January 2, 1940, shall be fully paid for and equally divided between the parties hereto.
3
“It is agreed that the parties hereto shall share equally in the profits or losses resulting from any transactions involving the acquisition of any other bank or banks or the disposition of any stocks representing the ownership of the above banks, whether merged or not, and the disposition of the stocks of any bank or banks acquired subsequent to this date.
4
“It is further agreed between the parties hereto that all or any portion of the above listed stocks, if offered for sale, be first offered to each other or Charles B. Bohn.”
Joseph H. Brewer died February 9, 1943, and plaintiff was appointed executor. Neither plaintiff nor his decedent paid any sums whatsoever to Stoddard. On March 12, 1943, Stoddard advised plaintiff that he disclaimed1 all obligations under the contract and that the contract, therefore, would not be an asset of the Brewer estate.
In December, 1940, the banks, in which stocks had been purchased by Mr. Stoddard from Bohn, were consolidated and defendant received 17,749 shares of stock of the Michigan National Bank in exchange for the shares of stock he had purchased from Bohn. Plaintiff in his bill of complaint alleges that the stock of the Michigan National Bank issued for the stocks purchased from Bohn had1 a market value of $381,603.50. This would indicate an approximate profit of $150,000 if the stock were sold at such price. Plaintiff further alleges on information and belief that other transactions involving the purchase of bank stocks occurred subsequent to June 10, 1940, and that these transactions, of which he has no record, would also come under the contract; that there has been no accounting between Stoddard and either decedent or himself. He asks that Stoddard be ordered to make a full disclosure o¡f all transactions, that a complete accounting be made, and that Stoddard be compelled to pay plaintiff the full amount of the damage to the estate of Joseph H. Brewer caused by the repudiation by Stoddard on March 12, 1943, of his obligations under the contract, the material parts of which have been heretofore set forth.
Defendant claims that any contract that preceded that of June 10, 1940, was in parol, void as against public policy, and without consideration. He also contends that the contract of June 10, 1940, was not supported by any consideration and was void because it was against public policy. He further alleges that neither plaintiff nor his decedent ever paid, or offered to pay, any part of the purchase price of the stocks. He, therefore, asked that the bill be dismissed. The parties regarded the pleadings as a motion to dismiss, and the trial judge entered, an order of dismissal.
Plaintiff on appeal presents only two questions. The main one is whether the contract, is against public policy and, therefore, unenforceable. Defendant reframes this question and asks whether an option agreement is against public policy and void for the reason that it couples with the sale of the stock in a banking corporation an agreement by the parties to share equally in the control of the bank to the extent that either of them shall be able to control and manage said bank, and also share equally in the compensation and salaries received by them or either of them as such officers of the bank until such time as the bank' stocks are fully paid for. The question resolves itself around paragraph 2 of the agreement, where it is provided in part :
“It is agreed # # * the parties hereto shall share equally in the control of said bank or banks, * * * and they shall share equally in the * * * salaries received by them, * * # as officers * * * of said bank or banks, until said stocks * * * shall be fully paid for and equally divided between the parties hereto.”
Under the national banking act, 12 USCA, § 24 (4 F. C. A. p. 6), stockholders of the bank elect the directors who in turn appoint the officers. The directors, as a rule, fix the salaries of the officers. This is not a voting trust agreement entered into by the stockholders, but an agreement by the parties to secure control of the banks and share equally in the salaries received by them as officers of the banks. It was not made for the purpose of benefiting the stockholders of the bank but for securing control of the banking corporations and dividing salaries. We believe the contract was against public policy. Such a contract will not be enforced. Shareholders in a corporation occupy a fiduciary relationship to other shareholders. In Wilbur v. Stoepel, 82, Mich. 344 (21 Am. St. Rep. 568), an agreement was made by two of three stockholders that the vendee of stock would be employed by-the corporation for two years and if at the end of that time he desired to retire from the corporation, the stock would be repurchased at a stated price. Objection was made by the third stockholder, and in holding that the agreement was against public policy, we said:
“This alleged agreement between the defendants, who owned a majority of the stock, and the plaintiff, is contrary to public policy, and void as against those not consenting to it. The defendants were directors, and, in the management of the corporate affairs, cannot but be unduly influenced by such an agreement. Their natural desire and inclination would be to continue the plaintiff as manager, although it were against the interest of the stock holders, and would1 be against their own as stockholders, but for the agreement which might render them liable for the payment of a large sum if they failed to retain him. Nor is such contract made valid by the good faith of the parties to it. Its effect upon stockholders who.,are not parties to it, or do not consent to it, is the same in the one case as in the other. The law therefore wisely condemns and prohibits all such contracts. The supreme court of the United States has so decided in a recent case, under facts very similar to the case at bar. West v. Camden, 135 U. S. 507 (10 Sup. Ct. 838, 34 L. Ed. 254), and authorities there cited.”
In West v. Camden, 135 U. S. 507 (10 Sup. Ct. 838, 34 L. Ed. 254),'where again the question of permanently retaining a stockholder as vice-president at a fixed salary in consideration of the sale to the company of a competing company, the court held that it was against public policy, and stated, p. 520:
“The agreement alleged to have been made was one on the part of the defendant whereby he might be required to act contrary to the duty, which, as an officer of the Baltimore United Oil Company, he owed to that company and'to the stockholders other than the plaintiff. The same rule which is applicable to the case of a public office applies to the present case, although it does not appear that the defendant was to receive direct, personal, pecuniary compensation or gain for what he was to do. The plaintiff on his own showing dealt with the defendant in reference to the fiduciary relation which the latter bore to the stockholders, both of the Standard Oil Company and of the Baltimore United Oil Company. The agreement alleged1 was an agreement which bound the defendant as to his future action as a director of the Baltimore United Oil Company and an agreement to keep the plaintiff permanently in the position of vice-president of that company irrespective of its interests. It amounted to a sitúa tion on the part of the defendant that no' contingency should happen which would require a change of management and a reduction of expenses.”
In Scripps v. Sweeney, 160 Mich. 148, the same question was discussed and it was stated, quoting from Jones v. Williams, 139 Mo. 1, 32 (39 S. W. 486, 40 S. W. 353, 37 L. R. A. 682, 61 Am. St. Rep. 436):
“But it is"said that the contract is against public policy and void for the reason that it couples with the sale of stock in the corporation an agreement to give to the purchaser a position for five years at a large salary, and in addition the position of director and president of the corporation.
“Counsel cite many cases in support of their position. It is undoubtedly true that ah agreement by one of the stockholders for the sale, directly or indirectly, of an office in a corporation or of a permanent position therein would be against public policy and void, though the contracting stockholder had shares sufficient in amount to give him control in the election of officers. By such agreement he might be required to act contrary to the duty he owed the company and other stockholders. West v. Camden, 135 U. S. 507 (10 Sup. Ct. 838, 34 L. Ed. 254).
“Each shareholder in the corporation has a right to rely upon the judgment of all the others in the election of directors and officers, and any such agreement which puts it out of its power to exercise such judgment is against public policy.”
A leading case to like effect is that of Guernsey v. Cook, 120 Mass. 501. We have always adhered to this rule. For further cases see Leland v. Ford, 245 Mich. 599, and Leland v. Ford, 252 Mich. 547; Stott v. Stott, 258 Mich. 547. In the latter case, we stated:
■.“The stockholders of a corporation have a community of interest in the property owned by it. They cán perform valid1 acts only when lawfully assembled in their representative capacity. When so acting, every stockholder has the right to assume that every other stockholder is exercising an independent and honest judgment on the questions presented, and that none of them has been influenced by a consideration paid to him for voting in a particular manner. As was said in West v. Camden, 135 U. S. 507, 521 (10 Sup. Ct. 838, 34 L. Ed. 254), it was the right of the other stockholders ‘to have the defendant’s judgment, as an officer of the company, exercised with a sole regard to the interests of the company. ’ A number of stockholders, before a meeting, may agree to combine together to favor any particular policy or lawful action to be considered thereat, and, if they own a majority of the stock, the minority may not, ordinarily, question their right to do so.”
Plaintiff attempts to differentiate the instant case so as not to come under the general rule, but the same principle prevails in all of them. The contract providing that the parties manage and control a bank to the extent of their ability, and share equally in the salaries and compensation received by them, was more than a voting trust agreement. It was an illegal contract to manage and control banks not in the interest of the stockholders and the public but for the purpose of using the banks so as to make profits, draw and share salaries and compensation solely in the interest of the parties to the' contract. It was against public policy and will not be enforced.
Plaintiff claims, however, that this was a joint enterprise. If it is one for the purpose of engaging in an illegal venture, the contract will not be enforced. Even assuming that the contract merely gave plaintiff or his decedent an option to purchase the stock, the option was never exercised. The contract called for personal services on the part of 'Mr. Brewer and death would terminate such contract. To the extent that it called for personal services under the joint venture, rights and liabilities of the parties should be governed by the rules which govern partnerships, Gleichman v. Famous Players-Lasky Corp,, 241 Mich. 266. The death of a partner dissolves a partnership. Murray v. Keeley Institute of Western Michigan, 190 Mich. 295, 312. The joint venture had no assets. It covered an illegal agreement which will not be enforced by the courts.
The agreement between Brewer and Stoddard is attached to and made part of the bill of complaint. It thus appears on the face of the bill that it is based on an agreement that was contrary to public policy and unenforceable. Therefore the trial judge was justified in dismissing plaintiff’s cause of action.
Order granting motion to dismiss is affirmed, with costs to defendant.
North, C. J., and Starr, Wiest, Btjshnell, Sharpe, Boyles, and Reid, JJ-., concurred. | [
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Nelson Sharpe, C. J.
On May 26, 1925, the defendant, a real estate dealer, negotiated a loan for plaintiff from William E. Baumann and Helen E. Baumann, his wife, for the sum of $355, evidenced by a promissory note, payable one year after date, and secured by a mortgage on a lot owned by plaintiff in the township of Ecorse, in the county of Wayne. Plaintiff paid the interest thereon for one year. He testified that a few days after the second year’s interest became due he told the defendant that he could not pay it up and, after the lapse of considerable time and several conferences, the deféndant said to him, — -“Well, you might as well sign it off and save foreclosure proceedings or any other legal procedure I might have to take,” — and that he decided to give him a deed upon defendant’s promise that “he would discharge my obligation.”
A warranty deed was prepared by the defendant, in which the title was warranted except as to the Baumann mortgage, and executed by the plaintiff on December 10, 1928, and delivered to the defendant. The name of the grantee was not inserted therein. Plaintiff testified that defendant said “it was not necessary to fill that in, that he did not know who he would sign the lot over to.”
It also appears that, after receiving the deed, the defendant paid the taxes delinquent on the lot for the years 1927 and 1928, amounting to $169. In 1931, the mortgagees began suit against the plaintiff on his note and recovered a judgment therefor, which has been paid or otherwise secured by him. When that action was brought, the defendant offered to return the deed to plaintiff, but he refused to accept it.. It was offered in evidence on this trial. The name of a grantee did not appear in it.
This action is brought by plaintiff to recover the value of the lot, based on the claim that the deed, while executed in blank, conferred on the defendant the power to pass the title thereto, and that the defendant “having converted it is liable for its value. ’ ’
The trial court reserved decision on defendant’s motion for a directed verdict, and submitted the case to the jury, who found for the plaintiff in the sum of $900. A motion for judgment notwithstanding the verdict was afterwards granted and a judgment entered for the defendant, from which plaintiff has prosecuted this appeal.
This action of the trial court was based upon his finding as a matter of law that the omission of the name of the grantee in the deed rendered it “inoperative as a conveyance” and imposed no obligation upon the defendant.
The general rule is that for a deed to become operative the name of the grantee must be inserted therein at the time of its delivery. Stamp v. Steele, 209 Mich. 205. To this rule there are exceptions. There are many decisions which hold that if the name of the grantee be afterwards inserted therein by direction of the grantor or his agent it becomes operative, and others holding that delivery of it gives implied authority to the person to whom it is delivered to fill in his own name or the name of a person to whom he may dispose of the property.
In Allen v. Withrow, 110 U. S. 119, 128 (3 Sup. Ct. 517), it was said:
“But there are two conditions essential to make a deed thus executed in blank operate as a conveyance of the property described in it; the blank must be filled by the party authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee named.”
In Kurbel v. O’Hair, 256 Mich. 680, in which the names of the grantees were inserted after delivery, Mr. Justice North, speaking for the court, said (p. 683):
“There are many cases which, under certain established circumstances, hold that an instrument in the form of a deed executed in blank as to one or more of its requisites is void. Appellants’ brief cites Newton v. McKay, 29 Mich. 1; Lindsley v. Lamb, 34 Mich. 509; Stebbins v. Watson, 71 Mich. 467; Maynard v. Davis, 127 Mich. 571; Barras v. Barras, 191 Mich. 473; and Stamp v. Steele, supra. None of these cases seem to go so far as to hold that under no circumstances would a deed executed in blank as to grantee be held valid, not withstanding the grantor placed it in his agent’s hands for delivery, that the grantee paid a valuable consideration to the grantor’s agent, and that the grantor received in full the agreed purchase price. In such cases the question of estoppel is usually controlling. ’ ’
The decisions are reviewed at length in 32 A. L. R. 737, and 75 A. L. R. 1108.
As no name of a grantee was at any time inserted in the deed, no title passed to the defendant by the mere act of its delivery to him.
Plaintiff’s counsel urge that, if it be so held, “nevertheless, Hoey turned over to Ebert something of value which the jury has found he diverted to his own use.”
While the evidence is conflicting as to the purpose for which the deed was executed and delivered, it never had any value, and it must be held that this claim is without merit.
The plaintiff still has title to his lot. He has-relieved it from the mortgage placed by him thereon. In our opinion he had no legal cause of action against the defendant, and the judgment was properly entered.
It is affirmed.
Potter, North, Pead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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North, J.
On March 28, 1944, defendant Schwitzke was convicted and sentenced in the St. Clair county circuit court for the crime of assault with the intent to commit rape. It will serve no purpose to recite the facts leading up to the arrest. As is-often true in this type of case, the testimony was highly conflicting and there was little or no testimony corroborating that of the people’s principal witness or the testimony of defendant who took the stand in his own behalf. It is not claimed that the testimony did not present an issue of fact as to defendant’s guilt. Instead this appeal by defendant is based solely on alleged error of the trial judge by including the following in his charge to the jury:
“Before sending you to the jury room to consider this case, there is a final instruction as to your duty you should have constantly in mind. This instruction does not in any way indicate the personal opinion of the court, nor should you consider it as being more favorable to one side than to the other. The safety of communities, which the law is designed to secure, can only be realized by its faithful execution.- There is an imperative necessity for the prompt arrest of persons accused and a thorough and impartial trial to ascertain their guilt'or Innocence.- Enforcement of criminal laws in a manner most conducive to the public welfare depends in a very important sense on the fidelity, intelligence and moral courage of the jurors on whom devolves the duty of deciding upon testimony the truth of every criminal accusation. If through want of judgment, or by failing to appreciate the relation of their duties to the general good, or if through extreme sensibility in view of the possible consequences of a conviction to the prisoner they acquit the guilty, the laws against crime are thereby in a measure suspended. Such mistakes would be an evil example to the whole class-of men inclined to crime.”
While it is true that the philosophy contained in the above, although correct,- might under some circumstances be misinterpreted by a jury and thereby become prejudicial, yet any such misunderstanding would be, and in the instant case was, obviated by the immediately following portion of the charge which was:
‘ ‘ On the other hand, if through inattention to the testimony, or by a more or less precipitant judgment a jury pronounces an innocent man guilty, the wrong is no less serious. There is, therefore, no escape from a grave responsibility.”
This Court has repeatedly stated that a charge to a jury must be considered in its entirety in determining whether or not it is prejudicial to a defendant, and that a new trial will not be granted where a jury could not have been misled by the charge as a whole.
“Where the charge of the judge to which exception is taken is not strictly correct, but the court can clearly see that the jury could not have been misled by it, to the injury of the party excepting, a new trial will not be granted for that error.” People v. Scott (syllabus), 6 Mich. 287.
See, also, People v. Marble, 38 Mich. 117, 125, and 3 Comp. Laws 1929, § 17354 (Stat. Ann. § 28.1096).
The conviction and sentence are affirmed.
Butzel, C. J., and Carr, Bushneld, Sharpe, Bowles, and Reid, JJ., concurred. Dethmers, J., did not sit. | [
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Kelly, J.
(dissenting). Plaintiffs’ challenge to the validity of defendant city of Detroit’s right to construct a $1,365,000 marina on the Detroit river, resulted in a Wayne county circuit court order finding and holding that;
“(a) The case of Edward Gray, Inc. v. City of Detroit [circuit court for the county of Wayne, in chancery, # 175,077] is not res judicata and determinative of the issues in this cause, and
“(b) The construction, operation and maintenance of the proposed city marina will constitute a public purpose, and
“(c) The city of Detroit is required under title 3, chapter 1, § 12 of the charter of the city of Detroit and also under section 5 (e) of the home-rule act, CLS 1961, § 117.5(e) (Stat Ann 1963 Cum Supp § 5.2084[e]) to secure approval of three-fifths of the electors voting thereon at any general or special election before it engages in any business enterprise requiring an investment of money by the city in excess of 10 cents per capita, and
“(d) The proposed city marina constitutes a business enterprise within the aforementioned provisions of the city charter and home-rule act, the cost to the city of which will exceed 10 cents per capita, and
“(e) The vote requirements of the aforementioned city charter and home-rule act have not been amended, deleted, or nullified by the revenue bond act of 1933, as amended, CL 1948, § 141.101 et seq. (Stat Ann § 5.2731 et seq.), and
“(f) The city of Detroit having failed to secure approval of three-fifths of the electors in accordance with the aforementioned provisions of the city charter and home-rule act.
. “It is ordered and adjudged that defendant, city of Detroit, its agents, servants, employees and attorneys be, and they hereby are, enjoined and restrained from proceeding with the erection, construction, completion, or operation of the proposed marina in George Engel Memorial Park and from proceeding with the execution, approval, or performance of any contract or structural plan with respect thereto, until approved by the electors of the city of Detroit in accordance with the aforementioned provisions of the city charter and home-rule act.”
Appellees in a cross-appeal challenge the court’s finding in paragraph (a), that the Gray Case is not res juclieata, and the finding in paragraph (b) that the marina will constitute a public purpose. Appellant places in issue the court’s finding under paragraph (f), namely, that the city must secure approval of three-fifths of the electors before constructing the proposed marina.
The State of Michigan through its waterways commission agreed on December 2, 1960, to pay one-half of the cost of construction of the proposed marina not to exceed $800,000. The attorney general and the Michigan Association of Municipal Attorneys have filed briefs amicus curiae.
Plaintiff Kean Estates Corporation at the time of trial operated a 319-well marina on the Detroit river, at 100 Meadowbrook, Detroit; had completed 35 new wells during the last year or two and had 30 additional wells nearing completion. It paid approximately $24,000 in taxes to the city of Detroit in 1963.
Plaintiff Gregory Marina, Inc., has operated a marina on the Detroit river since 1914. At the time of trial it had 128 boat wells and in 1964 paid taxes to the city of Detroit in the approximate sum of $20,000.
Plaintiffs contend: (1) That the case of Edward Gray, Inc. v. City of Detroit is res judicata and determinative of the issues in this case; (2) That the construction, operation, and maintenance of the proposed city marina is not for a public purpose’ because (a) the benefit is not available on equal terms to the entire public in the locality affected, and (b) the enterprise bears only remotely and circumstantially upon the public welfare; also (3) That the project has not been approved by three-fifths of the electors of the city of Detroit as required by the city charter.
Plaintiff in the case of Edward Gray, Inc. v. City of Detroit owned a parcel of land known as “Gray-harbor,” which was involved in that case. The property of present plaintiff Gregory Marina, Inc., is located on the same parcel of land, namely, “Grayharbor.”
In the Gray Case, the plaintiff sought an injunction to restrain the city of Detroit from constructing and operating a marina on another city park in Detroit. In this appeal, appellant, city of Detroit, admits in its brief that “The city proposed [in the Gray Case] to operate the marina in substantially the same manner as it proposes to operate the marina in the present case.”
In ruling against the city in the Gray Case on the question of whether the marina is for a public purpose — a main issue in this present appeal — the lower court stated: :
“Can it be said that the construction of these wells is for the benefit of the general public or for the benefit of that portion of the public owning motor boats? I understand the rule to be that a public purpose is one where it is possible for all people of a class to have equal rights and equal use of the public improvement. That will not be true in this case. * * * The same condition would arise if, for instance, the city of Detroit constructed a public garage and then leased stalls in such garage to a certain number of owners of automobiles for a year or any definite or long extended time. Or, if the city of Detroit constructed a golf course, which they have done and there is no doubt of their authority to do so, and then sold exclusive memberships therein to a limited number of people so that the general golf playing public could not have access to the grounds. Possibly if these boat wells were to be operated for use from day to day or something of that sort, where the general public might have ai opportunity to use them, the difficulty might be obviated. It is true on golf courses only a limited number of persons can play each day but at all times the public have equal opportunity to play on such courses. That would not be true and cannot be true in the present instance. * * * An entirely different state of facts exists under the proposed plan than would apply to the construction of golf courses or even wharves where any boat may tie up. It seems to me that the only reasonable deduction that can be drawn from the testimony in this case is that the city of Detroit is undertaking to construct at a large expense to taxpayers, boat wells for the permanent or semipermanent use of an exceedingly limited number of individuals. Not only does this plan open the door to unjust discrimination and political maneuvering but it is taxing the general public for the benefit of a selected few of a large class of citizens.”
Present plaintiff Gregory Marina, Inc., claims it is in privity with plaintiff Gray by reason of ownership; that the city did not appeal the Gray judgment, and that we should apply the doctrine of res judicata as defined in Skinner v. Argentine Township Board, 238 Mich 533, where we said (pp 537, 538):
“The doctrine of res judicata is defined to be: ‘that an existing final judgment or decree rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, upon a matter within its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue in the first suit.’ 15 ECL, p 950, § 429.”
Defendant city answers by stating that because of changes in the law, namely, the enactment of the revenue bond act of 1933, and decisions in Michigan and other jurisdictions upholding the right of cities to construct and operate marinas, the Gray Case does not control the issues in this cause.
The revenue bond act of 1933 defines public improvements to include “yacht basins; harbors; docks; wharves.”
The revenue bond act of 1933 did not violate nor change the provisions of our Constitution which require municipal expenditures to be used for public or municipal purposes.
The revenue bond act of 1933 does not change the law as to what constitutes a public purpose.
Defendant’s motion for summary judgment involving the question as to whether the revenue bond act overruled the Gray Case was denied with a correct summation by the trial court, as follows:
“The whole argument of the city of Detroit is based on the fact that the passage of the revenue bond act of 1933 supersedes this case of Edward Gray, Inc., v. City of Detroit. This revenue bond act does grant authority to public corporations to construct yacht basins, harbors, docks, wharves, et cetera. However, this revenue bond act must be construed to mean that the construction of these yacht basins, harbors, docks, and wharves must be for a public purpose. Otherwise, this act would contravene the Constitution of the State of Michigan which says that cities cannot tax their people except for public purposes.”
After an extensive trial, all parties stress the importance of our decision. We agree that the question in re “public purpose” should not be resolved on a - circuit court ■ level and, therefore, we are not agreeing with plaintiffs that we dispose of this appeal by finding that “The case of Edward Gray, Inc. v. City of Detroit is res judicata and determinative of the issues in this cause,” .
■ The Attorney General calls attention to the legislature’s creation of the Michigan waterways commission in 1947 (in which creation the writer of this opinion took an active part) providing for “the acquisition, construction and maintenance of harbors and channels,” and “the regulation and control of' boating within the boundaries of this State”; that “the commission favored the construction of facilities for transient watercraft but that it would participate in the construction of seasonal facilities if no other means were available for providing seasonal wells for boat owners”; that “the State’s position is that the definition of 'harbor’ also embraces the concept of a marina, since these words are synonymous and may be defined as a protected place for storage, anchorage, and servicing of watercraft”; that “the waterways commission is authorized to participate with municipalities in marina programs” under section 5 of the 1947 Michigan waterways commission act.
We agree with all of the above stated contentions of the attorney general. Nothing in this opinion challenges the right of the State and the city to jointly construct a marina.
We cannot agree with the position of the attorney general that we are not concerned with the question of public purpose because “the project here concerned constitutes a public purpose because expenditures have been authorized for its construction by the waterways commission under the waterways act.”
The proposed marina will not be financed under the provisions of the revenue bond act, but with taxpayers’ money. Nothing in the 1947 waterways commission act even intimates that a marina coiild be built contrary to the Michigan Constitution which requires municipal expenditures to be used for public purposes. Constitution 1908, art 8, §§ 20, 25 (Constitution 1963, art 7, §§ 21, 26).
The question presented is not the right to construct the marina. The question is whether the city can restrict its use as planned. \
Appellant city admits the restricted use in its “statement of facts” as follows:
“The city plans to lease the boat wells in the marina to the public by the season on a first-come, first-served basis and annually thereafter upon the expiration and failure to renew any such lease or when such boat wells become available for any other reason.”
Under the heading, “The benefit is not available on equal terms to the entire public in the locality affected,” appellees describe the restriction (which is sustained by the record) as follows:
“The city proposes to convert land which is now available to the entire public for recreational purposes to a marina which will serve a much smaller classification — boat owners — who need not even be residents of Detroit or, for' that matter, residents of the State of Michigan to qualify for a boat well. Businesses will be given the same right to lease wells as individuals. * * *
“The facilities will be leased on a seasonal basis to boat owners, each of whom will be granted a perpetual option to renew his lease. Defendant concedes that if a tenant wishes to stay for 20 years or longer he may do so. In January of each, year the city will send out a notice and ’ instructions on the manner of exercising the option. Permit holders are not permitted to assign their wells to anyone else, and the same well is assigned to the permit holder each year.
“The general public is excluded from the facilities. No swimming, diving, or bathing is permitted in the marina. Twenty-four hour watchman service, to keep out trespassers, is provided.”
The briefs submitted disclose extensive survey of decisions in other States in re marinas, wharves, waterfront, and other improvements, appellant citing nine cases and appellees three.
A review of these 11 out-of-State opinions discloses that the question as to whether a city may construct and lease boat wells in a marina to a limited few of the public and not the general public was not raised in any of these cases. While the decisions in some of these cases approved the construction of a marina or yacht basin, the public purpose issue was not directly raised in any of the eases except the Rhode Island case of In Opinion to the Governor, 76 RI 365 (70 A2d 817).
The court in this Rhode Island case, after stating (p 368), “The question upon which we are asked to give o.ur advisory opinion is narrow. Briefly it is whether the projects above referred to constitute public purposes in the constitutional sense,” said (pp 369-371):
“It seems to be well settled that ordinarily the development by a city of its harbor, including the building of docks and wharves, is a project in the public interest and constitutes a public use or purpose. The promotion of service to the public is considered to be the primary object of such a development. * * *
“In relation to the project of the marina the act before us is fairly comprehensive in scope. With reference to its purpose and to the city of Newport the act specifically refers therein to the ‘increase of its commerce,’ as well as to ‘the improvement of its health and living conditions,’ and clearly applies to all of a certain class without discrimination by providing that there be set up appropriate facilities for servicing yachts and pleasure boats of all types. Moreover, the act in effect deals primarily with an additional facility in the development of Newport harbor by the establishment therein of a yacht basin and if necessary the construction of a pier or piers in connection therewith. In our opinion such provisions clearly have for one of their chief objects the providing of a safe and convenient place for the anchorage and docking of yachts and pleasure boats, thereby in particular aiding in the regulation and control of harbor traffic, which is increased from time to time by the presence of numerous government vessels.”
■ The Rhode Island case is not helpful to this decision as it did not involve the right to use taxpayers’ money to build a facility to be used by a restricted number, such as is presented in this appeal.
In 1934 this Court upheld the constitutionality of the revenue bond act and permitted the city of Traverse City to construct a yacht basin, storage yard for boats, and other recreational facilities under the provisions of the act, but that decision did not consider the question now before us, namely, whether the facilities there involved were for a public purpose.
Two decisions in re “public use” are recognized by appellant, appellees, and this Court, as worthy of serious consideration, namely: Hays v. City of Kalamazoo, 316 Mich 443 (169 ALR 1218), and Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass 288 (23 NE2d 665).
Appellant city calls to our attention the following from the Hays Case (pp 453, 454):
“ ‘A public use changes with changing conditions of society, new appliances in the sciences, and other changes brought about by an increase in population and by new modes of transportation and communication. The courts as a rule have attempted no judicial definition of a public as distinguished from a private purpose, but have left each case to be determined by its own peculiar circumstances. Generally, a public purpose has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within the municipal corporation, the sovereign powers of which are used to promote such public purpose. The phrase “municipal purpose,” used in the broader sense, is generally accepted as meaning public or governmental purpose as distinguished from private. The modern trend of decision is to expand and liberally construe the term “public use” in considering State and municipal activities sought to be brought within its meaning. The test of public use is not based upon thé function or capacity in which or by which the use is furnished. The right of the public to receive and enjoy the benefit of the use determines whether the use is public or private.’ ”
Appellees answer:
“Appellant cites Hays v. City of Kalamazoo, 316 Mich 443, 453, 454 (1947) for the proposition that the modern trend of decision is to expand and liberally construe the term “public use”.’ We do not disagree with this statement nor with holding or reasoning of the Hays Case. We vigorously submit that this Court should closely examine and apply the last sentence of the language quoted from the Hays Case cited at page 8 of appellant’s brief:
“ ‘The right of the public to receive and enjoy the benefit of the use determines whether the use is public or private.’
“This test, from the Hays Case, is really the test which was utilized by Judge Covert in the Gray Case in holding that the marina there in issue was not for a public purpose. We hasten to add that the Gray Case is not only res judicata but is the only direct legal precedent cited by either party which is on all fours with the facts in the instant case.”
The Massachusetts decision in the Allydonn Realty Corporation Case involved a public housing question and in their briefs both appellant and appellees ask this Court to consider the following from that case (p 293):
“Some of the factors which the cases suggest as proper to be considered are these: Whether the benefit is available on equal terms to the entire public in the locality affected; whether the service or commodity supplied is one needed by all or by a large number of the public; whether the enterprise bears directly and immediately, or only remotely and circumstantially, upon the public welfare; whether the need to be met in its nature requires united effort under unified control, or can be served as well by separate individual competition; whether private enterprise has in the past failed or succeeded in supplying the want or in eradicating the evil; whether, insofar as benefits accrue to individuals, the whole of society has an interest in having those individuals benefited; whether a proposed extension of governmental activity is in line with, the historical development of the Commonwealth and with the general purpose of its founders; whether it will he necessary to use public ways or to invoke the power of eminent domain; whether a special emergency exists, such as may be brought about by war or public calamity. It is hardly necessary to say that the foregoing considerations are in no sense to be regarded as exclusive of others, and that great weight or little or no weight may be attached to some of them according to the presence or absence of others, or of still other conditions not hereinbefore enumerated.”
Appellant cites this Massachusetts case to sustain its contention that, “The courts tend to use the terms ‘public purpose’ and ‘public use’ interchangeably,” and concludes that:
“Although the court in the Allydonn public housing case suggested many elements to be considered in determining a public purpose, they are not the only elements or the principal elements to be considered in determining whether a marina constitutes a public purpose.”
Appellees, after quoting from the Massachusetts case, state:
“Tested by these criteria, the facts of the instant case establish that the proposed marina to be built in George Engel Memorial Park is not for a public purpose.”
Passing judgment on the important question: “Does the construction, operation and maintenance of the proposed city marina on George Engel Memorial Park constitute a public purpose,” the trial court found:
“The court believes that a case has been made out, although in some aspects not strong, that the construction and maintenance of a city marina is not barred because it is not a public purpose.”
"We cannot agree with the trial court. "We agree with the decision in the Gray Case when the same issued was presented as is here presented, and the trial court decided that:
“It seems to me that the only reasonable deduction that can be drawn from the testimony in this case is that the city of Detroit is undertaking to construct at a large expense to taxpayers, boat wells for the permanent or semipermanent use of an exceedingly limited number of individuals. Not only does this plan open the door to unjust cliserimination and political maneuvering but it is taxing the general public for the benefit of a selected few of a large class of citizens.”
The trial court in the instant case, recognizing the importance of the “public purpose” test, stated:
• “All counsel in this case agree that the proposed project must be for a public purpose if the city has the power and the right to construct and maintain a marina.”
"We reverse the holding of the lower court on the public purpose issue and remand with instructions that an order be entered restraining the construction of the proposed marina. No costs, a public question being involved.
Addendum.
Chief Justice Kavanagh’s challenge of this Court’s right to pass judgment on the question of public purpose, as evidenced by the following, is the main reason for this addendum:
“Such determinations (what constitutes a public purpose) should be made by the elected representatives of the people. This seems so obvious that it is surprising to see so many Michigan cases which apparently take the opposite view. * * * Any authority in Michigan, supporting the proposition that public purpose is a judicial question, rests, ultimately, on dicta of ancient vintage. * # * The legislature, whose wisdom we cannot question, has decided that the public interest would be served by the governmental construction of harbors or yacht basins or, if you will, marinas. # * * Since the legislature whose business it is, said that constructing and operating a marina is a public purpose, we agree with the trial court which decided that construction of a marina by the city of Detroit constitutes a public purpose.”
' The record proves that the legislature did not in any way express approval of projects such as the presently contemplated Detroit common council-waterways commission $1,600,000 marina.
"When the legislature in 1947 created the Act we are concerned with in this appeal, it made known its objective of aiding and encouraging transient watercraft traffic, and the fact that the waterways commission is and was aware of that fact is established by the attorney general’s statement that:
“Although the commission is concerned with the construction of 15 harbors of refuge authorized by Congress, it has not confined itself entirely to that project since the demands of recreational boatmen have resulted in a State-local program providing for the construction of mooring facilities for transient boatmen.” (Emphasis ours.)
Also, by the waterways commission’s director, Keith Wilson, who testified:
“In general, the commission participates only in the construction of facilities either for trailer board craft or for transients, watercraft visiting an area.”
Commission Director Wilson justified his making an exception to this commission rule because of necessity, but tbe record does not sustain such necessity. On the contrary, the record sustains appellees’ statement that:
“Private enterprise has met its responsibilities to the boating public over the years and continues to do so. * * * Since 1959 there have been 1,500 new wells constructed in the St. Clair Shores area by private enterprise.”
The dissenting opinions stress the fact that the legislature mentioned the words “harbors” and “yacht basins.” Chief Justice Kavanagh states: “The legislature, whose wisdom we cannot question, has decided that the public interest would be served by the governmental construction of harbors or yacht basins or, if you will, marinas.” Justice O’Hara states: “Passing now to the public purpose question. In Michigan, constructing and operating a marina is a ‘public purpose’ because the legislature, whose business it is, said so.”
I cannot agree with my Brothers. In 1933 the legislature included yacht basins, harbors and docks, as “public improvements” that could be financed by revenue bonds, but did not mention marinas. Fourteen years later when the legislature created the waterways commission act, the legislature not only failed to mention “marina,” but did not mention the words majored in my Brothers’ dissents, namely “yacht basins.”
Appellant and appellees offered considerable testimony on the question of public purpose and reviewed decisions, not only of our Court but the courts of other States, and established the Court’s right and duty to determine whether the project met the test of public purpose. This appeal came to our Court ■with no one claiming that legislative action prevented judicial review.
After an extensive and well prepared joint appendix, appellant and appellees agreed on three questions to be presented to our Court for decision, one of those three questions being:
“Does the construction, operation and maintenance of the proposed city marina on George Engel Memorial Park constitute a public purpose?”
Appellant and appellees agreed in deciding this question that the Court should consider the answer to the following questions:
Is the marina available on equal terms to the entire public in the locality affected?
Is the service supplied by the marina needed by all or a large number of the public?
Does the marina bear directly or only remotely and circumstantially on the public welfare?
Has private enterprise in the past failed or succeeded in supplying the want or eradicating the evil?
Whether insofar as benefits accrued to individuals by building the proposed marina, has the whole society an interest in having those individuals benefited?
My Brother quotes article 4, § 51, of the 1963 Constitution providing that:
“The public health and general welfare of the people of the State are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health,”
and states that the courts have held that it is not essential that the entire community or even any considerable portion should directly enjoy or par ticipate in any improvement in order to constitute a public use.
Answering, I call attention to our repeated quotation from 37 Am Jur, Municipal Corporations, § 120, p 735, entitled “What Constitutes Public Purpose,” as follows:
“Tbe test of public use is not based upon the function or capacity in which or by which the use is furnished. The right of the public to receive and enjoy the benefit of the use determines whether the use is public or private.”
Also, the following from appellees’ brief:
“Appellant’s basic argument on the public purpose issue is that the marina will benefit commerce, health, safety and navigation and that such benefits establish that the use is for a public purpose. * * *
“The fallacy of this argument is apparent when it is considered that the testimony of each of defendant’s witnesses on the subject of commerce, health, safety and navigation would not be any different if the marina wore to be established for an admittedly private purpose, for example, for the benefit only of the lawyers practicing law in "Wayne county, Michigan.”
Justice O’Hara in his dissenting opinion, states:
“The harried boat owner cannot come down daily to a publicly constructed and operated marina and ask for a slip or a buoy. * * * Owning a boat ■ of the kind here involved, up to 26 feet overall, is almost as demanding as owning an elephant. * '* * The non-trailered boat of the type above described is ‘lifted’ at the season’s end. It is then stored either under a tarpaulin or in a building, but in either case at the marina. * * # Absent a place to store it at the marina when fall crispens the air, he can’t leave it to the untender mercy of a Michigan winter, with the crunch of ice against the hull. He would have to move it by special motor carrier to some place where storage could be found. For these very inherent requirements the operation of a public marina must in substance conform to the practice in its privately operated counterpart.”
Now, for the purpose of avoiding any confusion because of the above statements and to prove that the $800,000 of Detroit tax money and the $800,000 State tax money for the proposed marina here in issue, will not solve the boat owners’ problems as he faces the winter but will cause him to turn to private enterprise to meet that situation, I quote the following from the testimony of the city’s witness, Maxwell P. Craig:
“Q. Now, the marina, the wells at Memorial Park and at the proposed marina in George Engel are all open wells, are they not?
“A. They are. *
“Q. That means that there is no covering over the top of them?
“A. Correct.
“Q. And you have, I take it, no room there for winter storage?
“A. No, sir.
“Q. How do the people get their boats out of the water at Memorial Park when October comes around?
“A. They go to — they go to private marina operators who have dry storage and make arrangements for their boats to be taken out and stored.
“Q. Do the private owners then come down with their regular—
“A. (Interrupting): They come down with the boats and tow these people’s boats to their dry storage area.
“Q. The city has no winter storage facilities?
“A. None whatsoever.
“Q. And plans none?
“A. Correct.”
We find no sanction for the proposed marina in either legislative or city charter enactments and, considering the issue from either the city of Detroit or the State taxpayers’ standpoint, the proposed project does not meet the public purpose test and constitutes taxing the general public for the benefit of a selected few.
Souris, J., concurred with Kelly, J.
T. M. Kavanagh, C. J.
(affirmed in part; reversed in part). The city of Detroit, defendant and appellant in the above-entitled cause,, proposes to construct and maintain a marina, consisting of approximately 265 boat wells, on one of its parks bordering on the Detroit river and known as the George Engel Memorial Park located at the foot of Fairview avenue in the city of Detroit. The State of Michigan, through its waterways commission, agreed on December 2, 1960, to pay one-half the cost of constructing the marina.
The city plans to lease the boat wells in the marina to the public by the season on a first-come, first-served basis, and annually thereafter upon the expiration and failure to renew any such lease or when such boat wells become available for any other reason.
Plaintiffs seek an injunction to restrain the city of Detroit from constructing the proposed marina.
The lower court held, in a written opinion dated October 13, 1964, that the case of Edward Gray, Inc. v. City of Detroit in the circuit court for the county of Wayne, in chancery, No. 175,077, was not res judicata and determinative of the issues in this cause; that the proposed marina constitutes a public purpose; and that approval of the electors must be secured before constructing the marina.
■Defendant city of Detroit is appealing the lower court judgment holding that approval of the electors must be secured before constructing the marina. Plaintiffs have cross-appealed the lower court’s finding that the Gray Case is not res judicata and determinative of the issues in this case and that construction and operation of the proposed marina constitutes a public purpose.
The crucial issue in this case is whether the construction of the proposed marina constitutes a public purpose. Article 7, § 26 of the Constitution of 1963 specifically prohibits the lending of the credit of any city or village “except as provided by law, for any public purpose.” Article 7, § 21, reads:
“The legislature shall provide by general laws for the incorporation of cities and villages. Such laws shall limit their rate of ad valorem property taxation for municipal purposes, and restrict the powers of cities and villages to borrow money and contract debts. Each city and village is granted power to levy other taxes for public purposes, subject to limitations and prohibitions provided by this constitution or by law.”
Article 4, § 51, provides:
“The public health and general welfare of the people of the State are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health.”
This new section, together with the traditional public policy of this State, must be held to limit the powers of the legislature and of government generally to snob legislative acts and such governmental powers as exhibit a public purpose.
The question of what constitutes a public purpose has become doubly important because of another case presently before this Court — City of Gaylord v. Gaylord City Clerk, 378 Mich 273, involving the industrial development revenue bond act of 1963, PA 1963, No 62 (CL 1948, §125.1251 et seq. [Stat Ann 1965 Cum Supp § 5.3533(21) et seq.]). In that case, too, the crucial question is whether Act No 62 and the program of the city of Gaylord thereunder exhibit a public purpose.
The United States Supreme Court, in discussing the police power and eminent domain power of congress, has admitted that:
“An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it he congress legislating concerning the District of Columbia (see Block v. Hirsh, 256 US 135 [41 S Ct 458, 65 L ed 865, 16 ALR 165]) or the States legislating concerning local affairs. * * * This principle admits of no exception merely because the power of eminent domain is involved. The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one.” Berman v. Parker, 348 US 26, 32 (75 S Ct 98, 99 L ed 27). (Emphasis ours.)
Our highest court was even more candid in the case of United States, ex rel. Tennessee Valley Au thority, v. Welch, 327 US 546, 552 (66 S Ct 715, 90 L ed 843), where the court made this confession:
“But whatever may be the scope of the judicial power to determine what is a ‘public use’ in Fourteenth Amendment controversies, this Court has said that when congress has spoken on this subject ‘Its decision is entitled to deference until it is shown to involve an impossibility.’ Old Dominion Co. v. United States, 269 US 55, 66 (46 S Ct 39, 70 L ed 162). Any departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.”
The United States Supreme Court’s reasoning is flawless. For determination of what constitutes a public purpose involves considerations of economic and social philosophies and principles of political science and government. Such determinations should be made by the elected representatives of the people. This seems so obvious that it is surprising to see so many Michigan cases which apparently take the opposite view.
“Whether the use for which land is sought to be acquired by condemnation is a public one is a judicial question.” General Development Corporation v. City of Detroit, 322 Mich 495, 498. Statements such as these, appearing regularly in our Michigan Reports can be traced back to several opinions of the Cooley Court in which the issue was never raised. In People, ex rel. Detroit & Howell R. Co., v. Township Board of Salem, 20 Mich 452 (4 Am Rep 400), and Ryerson v. Brown, 35 Mich 333 (24 Am Rep 564), the Cooley Court, without discussing the preliminary issue of whether “public purpose” is a judicial or legislative question, proceeded to discuss and judicially dispose of the matter. Any authority in Michigan, supporting the proposition that public purpose is a judicial question, rests, ultimately, on dicta of ancient vintage.
The only authority that ever discussed the question is found in In re Hartwell, 2 Brown’s Michigan Nisi Prius Reports 97, 99, 100. In that case Judge Brown said:
“Indeed, I think it is quite as correct to say that eminent domain is the inherent right necessarily resting in every sovereignty to control and regulate the relative rights of individuals where those rights are of a public nature and pertain to its citizens in common. This being so, no constitutional provision is necessary to give it force. The power is not horn of written constitutions but is usually limited by them. It therefore follows that the people, through their representatives are to determine the question as to the propriety and expediency of exercising this right — they are to say what property may be taken for public use, and to declare what shall be deemed public and private uses, limited only by the Constitution. * * * But what branch of the government is to determine what enterprises are of a public and what of a private character? In the case of Beekman v. S & S R R Co., 3 Paige (NY) 73, Chancellor Walworth says: Tf the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain.’ Upon this point, see the cases reported in Commonwealth v. Breed, 4 Pick (21 Mass), 460, 463; Charles River Bridge v. Warren Bridge, 7 Pick (24 Mass) 344, 453, 475, 476; Hazen v. Essex Company, 12 Cush (66 Mass) 475, 477; Newcomb v. Smith, 1 Chandler (1 Wisc) 71, 80.”
To this we need only to add that passage from American Jurisprudence which has been quoted heretofore with a curious selectivity. The full quote reads as follows:
“What is a public use is not capable of absolute definition. A public use changes with changing conditions of society, new appliances in the sciences, and other changes brought about by an increase in population and by new modes of transportation and communication. The courts as a rule have attempted no judicial definition of a public as distinguished from a private purpose, but have left each case to be determined by its own peculiar circumstances. Generally, a public purpose has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within the municipal corporation, the sovereign powers of which are used to promote such public purpose. The phrase ‘municipal purpose’ used in the broader sense is generally accepted as meaning public or governmental purpose as distinguished from private. The modern trend of decision is to expand and liberally construe the term ‘public use’ in considering State and municipal activities sought to be brought within its meaning. The test of public use is not based upon the function or capacity in which or by which the use is furnished. The right of the public to receive and enjoy the benefit of the use determines whether the use is public or private.
“The determination of what constitutes a public purpose is primarily a legislative function, subject to review by the courts when abused, and the determination of the legislative body of that matter should not be reversed except in instances where such determination is palpable and manifestly arbitrary and incorrect.” (Emphasis added.) 37 Am Jur, Municipal Corporations, § 120, pp 734, 735.
The revenue bond act of 1933 (CL 1948 and CLS 1961, § 141.101 et seq. [Stat Ann 1958 Rev and Stat Ami 1961 Cum Supp § 5.2731 et seq.]), whose stated purpose was to authorize public improvements, provided that the term “public corporation” shall be construed to mean any city and that the term “public improvements” includes yacht basins and harbors. Although the proposed marina will not be financed by the issuance of revenue bonds, the revenue bond act also provided “the powers in this act granted may be exercised notwithstanding that no bonds are issued hereunder.” See Seltzer v. Sterling Township, 371 Mich 214.
The Michigan State waterways commission was created in 1948 by PA 1947, No 320 (CL 1948 and CLS 1961, § 281.501 et seq. [Stat Ann 1961 Rev §3.534(1) et seq.]). This act provides principally for (a) “the acquisition, construction and maintenance of harbors and channels”, and (b) “the regulation and control of boating within the boundaries of this State.”
Commission activities are financed by a transfer to the commission of revenues under PA 1911, No 70, as amended (CL 1948 and CLS 1961, § 207.51 et seq. [Stat Ann 1960 Rev and Stat Ann 1965 Cum Supp § 7.281 et seq.]) providing for collection of tonnage and watercraft license fees. Additional financing is enabled under PA 1947, No 320, § 9 (CLS 1961, § 281.509 [Stat Ann 1961 Rev § 3.534(9)] ), directing that one-half of one per cent of the gasoline tax shall be turned over to the commission “to improve boating facilities throughout the State.” No limitation on the kind and nature of boating facilities is indicated and the reference to boating facilities is made in general terms.
This Court should also take judicial notice of the fact that recreational boating has continued to be one of the leading outdoor pastimes in Michigan. Our State leads all other states in registered watercraft, and the total State recreational fleet is estimated to he in excess of 500,000 craft.
In view of the magnitude of boat ownership, it should not surprise us that the legislature has decided to act as it has in connection with boating facilities. The legislature, whose wisdom we cannot question, has decided that the public interest would be served by the governmental construction of harbors or yacht basins or, if you will, marinas.
But whether this Court is willing to admit that determination of what constitutes a public question is a legislative function or not, the construction of a marina by the city of Detroit clearly meets the test of a public purpose which the courts have taken upon themselves to formulate.
In Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass 288 (23 NE2d 665), quoted in part in Mr. Justice Kelly’s current opinion, and previously relied upon by this Court in In re Brewster Street Housing Site (1939), 291 Mich 313, the Court concludes its discussion with these remarks:
“It is hardly necessary to say that the foregoing considerations are in no sense to be regarded as exclusive of others, and that great weight or little or no weight may be attached to some of them according to the presence or absence of others, or of still other conditions not hereinbefore enumerated.” Allydonn Realty, supra, p 293.
Therefore, rather than attach any great weight to one or all of the separate tests set forth in Allydonn, supra, or comb the reports for other tests, suffice it to say that I see little to distinguish off-street garages built by the city of Detroit to house cars from marinas built to house boats,
Furthermore, this Court in Gilbert v. Traverse City, 267 Mich 257, 261, did not find it necessary to belabor the obvious. There the Court remarked that:
“The city of Traverse City proposes to construct a municipal harbor and park development, comprising a harbor and yacht basin, auditorium, casino, bath house, museum, storage yard for yachts and boats, and other park and recreational facilities. * * * The project in question seems to be authorized by article 8, § 22, conferring upon cities the power to construct and maintain parks and other works which involve the public health and safety.”
Since this Court has indicated that construction of a “harbor and yacht basin, * * * storage yard for yachts and boats,” or in other words, a marina, involves “the public health and safety,” and since the legislature whose business it is, said that constructing and operating a marina is a public purpose, we agree with the trial court which decided that construction of a marina by the city of Detroit constitutes a public purpose.
But there are further objections that the question presented is not the right to construct a marina. The question is whether the city can restrict its use as planned. Here reference is apparently being made to the fact that although the marina will open on a first-come, first-served basis, thereafter vacancies will only occur upon the expiration and failure to renew any such lease. Thus a single boat owner could occupy the same slip for years to the exclusion of the general public.
This problem is apparently caused by the two sentences that appear in 37 Am Jur, Municipal Corporations, § 120, which read:
“The test of public use is not based upon the function or capacity in which or by which the use is fur nished. The right of the public to receive and enjoy the benefit of the use determines whether the use is public or private.” (p 735)
That this is merely another facet of the public purpose test and not an all pervading consideration is evident in the field of public housing, where the same lease renewal provisions exist and where it is possible for a single family to occupy the same unit for many years.
' The United States Supreme Court has said that it “is not essential that the entire community, nor even any considerable portion, should directly enjoy or participate in any improvement in order to constitute a public use.” Rindge Company v. County of Los Angeles, 262 US 700, 707 (43 S Ct 689, 67 L ed 1186). The Illinois supreme court has clearly stated the logical principle: “If it can be seen that the purpose sought to be obtained is a public one and •contains the elements of public benefit, the question of how much benefit is thereby derived by the public is one for the legislature and not the courts.” People, ex rel. McDavid, v. Barrett, 370 Ill 478, 482 (19 NE2d 356, 121 ALR 1311, 1315).
In the case before us it has been pointed out that the only practical way a marina can successfully operate is to allow renewal of leases from year to year. Mr. Justice Kelly is in the curious position of postulating that although the city of Detroit can construct a marina, it cannot operate the marina so as to insure its success.
The conclusion is compelling. Neither the construction nor the operation of a marina by the city of Detroit will violate the constitutional prohibition against expenditures of money or other property for other than public purposes.
The trial court was also clearly correct in holding that because of new circumstances and changes in public opinion and decisions in Michigan-and other jurisdictions upholding the right of cities to construct and operate marinas,, the Gray Case does .not control the issues in this cause.
This leaves only defendant-appellant’s contention that the lower court was in error in holding that approval of the electors must be secured before constructing the marina.
Section 5(e) of the home rule act, CL 1948, § 117.5 (Stat Ann 1949 Eev § 5.2084) provides in part:
“No city shall have power: * * * .
“(e) To * * * engage in any business enterprise requiring an investment of money in excess of 10 cents per capita * * * unless approved by 3/5 of the electors voting thereon at any general or special election.”
Accordingly, the. charter of the city of Detroit provides in part in title 3, chap 1, § 12(h):
“Section 12. The legislative powers and duties of the council shall be as follows: \ * * (h) * *, * provided, that it shall not have the power to * *' * engage in any business enterprise requiring an investment of money in excess of 10 cents per capita unless first approved by three-fifths of the electors voting thereon at any general or special election.” '
The population of the city of Detroit was 1,670,-144 in 1960, with-a resultant limitation of expenditures for a business enterprise of $167,014.40, well below the projected $1,365,000 to be expended for the proposed marina.
Of course, if the operation of a marina does not constitute a business enterprise, then the.above sec tions of the city charter are inapplicable and approval of the city electors would not be necessary.
The hey word in defining a business enterprise is profit. “Business Enterprise: Investment of capital, labor or management in an undertaking for profit; one of the recognized attributes is centralized management and control. Helvering v. Jewel Mining Co. (CA 8), 126 F2d 1011, 1015.” Black’s Law Dictionary (4th ed, 249).
Although our Court has not hesitated to characterize the activity of a city as proprietary for purposes of tort liability (see Barron v. City of Detroit, 94 Mich 601 (19 LRA 452, 34 Am St Rep 366), Borski v. City of Wakefield, 239 Mich 656, Lyshak v. City of Detroit, 351 Mich 230, Marks v. City of Battle Creek, 358 Mich 114), the case law is not as clear as to what constitutes a “business enterprise” within the meaning of section 5(e) of the home-rule act (CLS 1961, § 117.5(e) [Stat Ann 1963 Cum Supp § 5.2084(e)]). However, in Cleveland v. City of Detroit, 324 Mich 527 (11 ALR2d 171), the Court ruled that an underground parking project beneath the surface of Washington Boulevard was not a business enterprise requiring voter approval under either the home-rule act or the charter of the city of Detroit.
One consideration that is apparent from the Cleveland Case, supra, is that even though a fee is charged for use of the facilities, this does not necessarily transform the undertaking into a business enterprise.
If a parking facility for motor vehicles is not a business enterprise, then the operation of a marina, a parking facility for boats, involving as it does public health, recreation, and welfare, is not a business enterprise. It seems the city of Detroit is discharging its obligation to provide adequate, safe recreational facilities for its population. Viewed in-this light, there is little to distinguish a marina from a city-owned swimming pool, canoe rental, ice skating rink, or any other recreational facility.
The Court’s remarks concerning-another marina project, in Gilbert v. Traverse City, supra, at p 261, are informative:
“The project in question seems to be authorized by article 8, § 22, conferring upon cities the power to construct and maintain parks and other works which involve public health and safety.”
If such projects concerning public health and safety' are to be characterized as “business enterprises” requiring voter approval, the discharge of one of government’s primary functions will be needlessly complicated.
We hold the operation of marina is not a “business enterprise” within the meaning of section 5(e) of the home rule act or title 3, chap 1, § 12(h) of the charter of the city of Detroit; therefore, the approval of the electors is not needed.
The trial court’s judgment holding that approval of the electors must be secured before constructing the marina is reversed. The trial court’s finding that the Gray Case is not res judicata and determinative of the issues in this case, and that construction and operation of the proposed marina constitutes a public purpose, is affirmed.
Black and Smith, JJ., concurred with T. M. Kavanagh, C. J.
O’Hara, J.
(for dismissal of bill). I echo the grave concern expressed by the Association of Municipal Attorneys in its amicus curiae brief over the “harsh consequences which can result from a decision adverse to the city of Detroit.” Such decision, I fear, would be the solemn requiem for the whole Statewide small craft harbor development program.
Appellant municipality, the city of Detroit, correctly states the issues presented by this appeal as follows:
“Is the case of Edward Gray, Inc., v. City of Detroit res judicata and determinative of the issues in this cause? * * *
“Does the construction, operation and maintenance of the proposed city marina on George Engel Memorial Park constitute a public purpose? * * *
“Is the city of Detroit required, under title 3, chapter 1, § 12(h) of its charter and also under section 5(e) of the home rule act (CL 1948, § 117.5[e] [Stat Ann 1963 Cum Supp § 5.2084(e)]), to secure approval of three-fifths of the electors before constructing the proposed marina?”
Our Court seems in complete accord that the Gray Case either does not or should not control. Further discussion of this point is not indicated.
The second question is stated by Justice Kelly as follows:
“The question presented is not the right to construct the marina. The question is whether the city can restrict its use as planned(Emphasis supplied. ) •
As I understand Justice Kelly he holds that the expenditure of tax funds on construction of the marina is for a public purpose, but the proposed rental and renewal procedure vitiates that purpose.
I address myself then to the “restricted use” test of Mr. Justice Kelly. In the first instance, it must be understood that there is an infinity of difference between watercraft commissioned for a season’s sailing and requiring a permanent mooring facility, and a trailered boat which can be put in or taken out of the water for and after each use, at a launching ramp, or indeed pulled up on the beach out of harm’s way by hand.
Once commissioned a seasonal-use watercraft' by its inherent nature must have a permanent and assigned mooring place. Safety of the craft demands it, whether sail or power. In most instances, sail-craft ride free and swing with the mooring buoys. Their fixed keels require relatively deep draft. Power boats need “finger slips,” referred to herein as mooring “wells.” They require less depth. But in either case the harried boat owner cannot come down daily to a publicly constructed and operated marina and ask for a slip or a buoy. Expatiating on the point is useless. A boat owner knows this. His non-boating fellow citizen must either take it on faith of have the experience the boater has often painfully and expensively learned. In irreducible simplicity, one cannot pick up a nontrailered, season-commissioned watercraft at the end of a day’s use and throw it over one’s shoulder like a golf bag, stick it in a case like a shotgun, or stow it away in a tackle box like a jointed fish pole. Owning a boat of the kind here involved, up to 26 feet overall, is almost as demanding as owning an elephant. The sine qua non is a safe and adequate place to keep it. Thus I postulate that seasonal rental of a mooring facility for- sail or power is inherently necessary to the operation of a marina, public or private.
The second point raised by Justice Kelly is the renewal feature of the seasonal renting. I believe this is equally fallacious. I don’t quite see how equality of treatment is served by putting public mooring places up for grabs each year. First it is self-defeating. The nontrailered boat of the type above described is “lifted” at the season’s end. It is then stored either under a tarpaulin or in a building, but in either case at the marina. The lift moves the craft only to its cradle and to the adjoining-storage space inside or out. If the unfortunate owner draws a blank for the forthcoming year, he has no choice but to leave the craft where it is and pay storage. The new lucky owner now has a slip, or a buoy, but at the nest season’s end his position is equally untenable. Absent a place to store it at the marina when fall crispens the air, he can’t leave it to the untender mercy of a Michigan winter, with the crunch of ice against the hull. He would have to move it by special motor carrier to some place where storage could be found.
For these very inherent requirements the operation of a public marina must in substance conform to the practice in its privately operated counterpart. The “restrictive use” test is impractical and unworkable. There is no way to operate a marina successfully and rent mooring space therein on a day-to-day basis.
Passing now to the public purpose question. In Michigan, constructing and operating a marina is a “public purpose” because the legislature, whose business it is, said so.
The revenue bond act of 1933 is an act, the stated purpose which was to “authorize public corporations to construct * * * public improvements.” . It provides that the term “public corporation” shall be construed to mean any city. The term “public improvements” specifically includes yacht basins and harbors. Detroit is a city, hence a public corporation. It would seem this public corporation is doing precisely what the statute authorized it to do.
What of appellees’ point that the marina’s 'construction is not being financed by the issuance of revenue bonds ? The answer again was legislatively supplied:
“The powers in this act granted may be exercised notwithstanding that no bonds are issued hereunder.”
Since the city then may do what it proposes to do with its own funds, may it do so in conjunction with the 1947 State waterways commission act and its matching funds ? The statute answers :
“The several counties, townships, cities and villages of this State, within the jurisdiction of which are situated inland waterways connected with or connecting the waters of the Great Lakes, or within which channels to nearby inland lakes and streams may be constructed or opened for navigation and shelter of light draft vessels, are hereby authorised by majority vote of their respective legislative bodies, to enter into contracts and agreements with the commission in the accomplishrhent of the purposes herein set forth.” (Emphasis supplied.)
What then is the use of these chancery proceedings? Can equity’s historic injunctive power be effectively stultified by statute? Certainly not under our State Constitution. However, how that power relates to the issue herein has been clouded, if not completely obscured.
The able retired trial judge who unselfishly returned to perform judicial duties at our behest was in error when he concluded his decision as follows:
“The attempt in sections of the revenue bond act to bypass and thus in effect to amend, delete and nullify the city charter and home-rule provisions requiring approval by a three-fifths vote of city electors does not commend itself to the Court”. (Emphasis supplied.) . .
I might add sympathetically that some things the’ legislature does, and in some cases does not do, don’t commend themselves to me. This is not the point. The point is that under settled law :
“.The question of whether the proposed use is a public use is a judicial one.”
The trial judge had already found:
“That in spite of the very excellent cross-examination of defendant witnesses, that the plaintiffs have failed to prove that the proposed project is not for a public purpose.” (Emphasis supplied.)
When the court so found and held, it was no longer at liberty to apply the provisions of the home-rule act and its adopted counterpart provision in the city charter, inhibiting cities from engaging in “.any business enterprise requiring an investment of money in excess of 10 cents per capita * * * unless approved by three-fifths (3/5) of the electors voting thereon in any general or special election.” The term “business enterprise” as used in the charter (Detroit charter, title 3, chap 1, § 12) and the home rule act (CLS 1961,- § 117.5, subd [e] [Stat Ann 1963 Cum Supp § 5.2084, subd (e)]), and the term “public improvement’,’, as used in the revenue bond act, are mutually exclusive.
This holding raises the inquiry how and under what circumstances can a protesting business interest or taxpayer obtain relief against a municipality which undertakes a statutorily designated “public improvement” which competes with and may adversely affect a similar private enterprise. The answer is, that by judicial action he cannot, so long as the municipal activity is specifically designated by statute as a “public improvement” and the proof establishes that what is being undertaken conforms in fact with the legislative designation. However much judicial sympathy we might want to extend to an adversely affected citizen-taxpayer, he must find his relief in the legislature and not in the courts. We cannot rewrite the plain terms of the two statutes here involved. Particularly, we cannot say that when the legislature expressly designated the construction and operation of a yacht basin or harbor (which terms are synonymous with marina), a public improvement upon which public funds may be expended, that a charter or statutory restriction applying only to a “business enterprise” can prevent such expenditure.
I must add that I do not quite understand how Justice Kelly concludes that he is “reversing” Judge Elliott. Judge Elliott enjoined the city from expending any funds on the construction and operation of the marina. So did Justice Kelly. It seems to me he affirmed Judge Elliott, but for a reason other than he relied upon.
In any event, I would vacate the judgment entered by the trial court and direct the entry of a judgment dismissing the complaint and awarding no costs.
Dethmers, J., concurred with O’Hara, J.
CL 1948 and CLS 1961, § 141.101 et seq. (Stat Ann 1958 Rev and Stat Ann 1961 Cum Supp § 5.2731 et seq.).
PA 1947, No 320 (CL 1948 and CLS 1961, § 281.501 et seq. [Stat Aim 1961 Rev § 3.534(1) et seq.~\). See, currently, PA 1965, No 380, § 258 (CL 1948, § 16.358 [Stat Ann 1965 Cum Supp § 3.29-(258)]).—Reporter.
PA 1947, i[o 320, § 5 (CL 1948, § 281.505 [Stat Ann 1961 Rev § 3.534(5)]), ■
Allydonn Realty Corp. v. Holyoke Sousing Authority, 304 Mass 288 (23 NE2d 665) ; In Opinion to the Governor, 76 RI 365 (70 A2d 817) ; Laret Investment Co. v. Dickmann, 345 Mo 449 (134 SW2d 65); Miller v. City of St. Augustine (Fla), 97 S2d 256; Nelson v. DeLong, 213 Minn 425 (7 NW2d 342); Panama City v. State of Florida (Fla), 93 S2d 608; State v. City of Clearwater (Fla), 184 So 790; Puget Sound Power & Light Co. v. City of Seattle, 291 US 619 (54 S Ct 542, 78 L ed 1025) ; Ventura Port District v. Taxpayers, 53 Oal 2d 227 (347 P2d 305, 1 Cal Rptr 169).
Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass 288 (23 NE2d 665) ; Mayor and City Council of Baltimore v. Baltimore Steam, Packet Co., 164 Md 284 (164 A 878) ; Union City Housing Authority v. Commonwealth Trust Co., 25 NJ 330 (136 A2d 401).
Gilbert v. City of Traverse City, 267 Mich 257.
Waterways commission act (PA 1947, No 320 [CL 1948 and CDS 1961, § 281.501 et seq. (Stat Ann 1961 Rev § 3.534(1) et seg.)]).
Revenue bond act of 1933 (CL 1948 and CLS 1961, § 141.101 et seq. [Stat Ann 1958 Rev and 1961 Cum Supp § 5.2731 et seq.]).
Kays v. City of Kalamazoo, 316 Mich 443 (169 ALR 1218); Younglas v. City of Flint, 345 Mich 576, and Sommers v. City of Flint, 355 Mich 655,
See CLS 1961, § 141.103 (Stat Ann 1958 Rev § 5.2733).—Reporter.
See CLS 1961, §141.104 (Stat Ann 1958 Rev § 5.2734).— REPORTER,
This seetion, subsequent to initiation of this suit, was amended by PA 1965, No 65 (Stat Ann 1965 Cum Supp § 5.2084), which requires only majority approval by the electors rather than a 3/5 concurrence of electors.
Edward Gray, Inc. v. City of Detroit (Circuit Court for the county of Wayne, in chancery, # 175,077).
CL 1948 and CLS 1961, § 141.101 et seq. (Stat Ann 1958 Rev and Stat Ann 1961 Cum Supp § 5.2731 et seq.).
CLS 1961, §141.104 (Stat Ann 1958 Rev § 5.2734).—Reporter.
PA 1947, No 320, § 5 (OL 1948, § 281.505 [Stat Ann 1961 R§v § 3.534(5)]).
Cleveland v. City of Detroit, 322 Mich 172, at p 179. | [
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Per Curiam.
The issue presented by this application for leave to appeal is whether the Watercraft Pollution Control Act of 1970 (WPCA), MCL 323.331 et seq.; MSA 3.533(201) et seq., prohibits the discharge of sewage, whether treated or untreated, from watercraft in Michigan waters. Both the Mackinac County Circuit Court and the Court of Appeals, 91 Mich App 357; 282 NW2d 486 (1979), have determined that the WPCA only prohibits the discharge of inadequately treated sewage. We disagree.
Pursuant to GCR 1963, 853.2(4), 865.1(7), and for the reasons set forth below, in lieu of granting leave to appeal we reverse these judgments and hold that the WPCA prohibits the discharge of all sewage, whether treated or untreated, from watercraft in Michigan waters.
I
This litigation has an extensive history. The WPCA was enacted in 1970 and took effect January 1, 1971. In 1971, several federally licensed commercial vessel owners and their industry association (joined in 1976 by their Canadian counterparts) sought to have the WPCA declared invalid and its enforcement enjoined in Federal court. The defendants, charged with administering and enforcing the act, read its provisions as absolute; thus, they intended to require all vessels equipped with marine toilet facilities to either store or incinerate the sewage on board for subsequent onshore disposal. Plaintiffs attacked the WPCA, as interpreted by the defendants, on Federal constitutional grounds.
This complaint was dismissed for lack of a justiciable controversy as required by the declaratory judgment act, 28 USC 2201, and because compelling reasons for Federal abstention existed. 336 F Supp 248 (ED Mich, 1971). On appeal, the United States Supreme Court found that an actual controversy existed, but agreed that abstention was proper. 406 US 498; 92 S Ct 1749; 32 L Ed 2d 257 (1972). The judgment was vacated and the case remanded with an order that jurisdiction be retained pending institution of proceedings in Michigan courts.
Abstention was found to be proper because the Court saw a critical inconsistency between § 3(1) and §§ 3(2) and 4(2) of the WPCA. Relying on this claimed ambiguity and the fact that the act had never been construed by a Michigan court, the majority was "satisfied that authoritative resolution of the ambiguities in the Michigan law [was] sufficiently likely to avoid or significantly modify the federal questions appellants raise[d] to warrant abstention”. 406 US 512.
Plaintiffs then filed this action for declaratory judgment pursuant to GCR 1963, 521, in circuit court. Following the lead of the United States Supreme Court majority, the circuit court held that the WPCA was ambiguous and required judicial interpretation. The court determined that the WPCA only barred the discharge of sewage which was not treated to an adequate degree by a United States or Canadian certified marine sanitation device. The adequacy of the degree of treatment was to be determined by Federal regulations.
Defendant Attorney General sought relief in the Court of Appeals. Agreeing with the circuit court and the United States Supreme Court, the Court of Appeals found the provisions of the WPCA to be ambiguous and conflicting. The Court concluded:
"In order to achieve a harmonious and consistent result with statutes and treaty law in pari materia, we are compelled to reject that interpretation of the WPCA which would absolutely prohibit all sewage discharge and conclude that the correct construction to be placed upon the act is one which bans only the discharge of inadequately treated sewage, i.e., that not treated in accordance with Federal standards.” 91 Mich App 370.
Defendant Attorney General has now filed this application for leave to appeal.
II
To fully understand this litigation, familiarity with the WPCA provisions is necessary. The pertinent sections are set forth below.
Section 2, MCL 323.332; MSA 3.533(202), in relevant part, reads:
"As used in this act:
"(c) 'Litter’ means all rubbish, refuse, waste material, garbage, offal, paper, glass, cans, bottles, trash, debris or other foreign substances of every kind and description.
"(d) 'Sewage’ means all human body wastes, treated or untreated.
"(e) 'Oil’ means oil of any kind or in any form, including but not limited to petroleum, fuel oil, sludge and oil refuse.”
Section 3, MCL 323.333; MSA 3.533(203), reads:
"(1) A person shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any litter, sewage, oil or other liquid or solid materials which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes.
"(2) It is unlawful to discharge, dump, throw or deposit garbage, litter, sewage or oil from a recreational, domestic or foreign watercraft used for pleasure or for the purpose of carrying passengers, cargo or otherwise engaged in commerce on the waters of this state.”
Section 4(2), MCL 323.334(2); MSA 3.533(204)(2), reads:
"A person owning, operating or otherwise concerned in the operation, navigation or management of a watercraft having a marine toilet shall not own, use or permit the use of such toilet on the waters of this state unless the toilet is equipped with 1 of the following pollution control devices:
"(a) A holding tank or self-contained marine toilet which will retain all sewage produced on the watercraft for subsequent disposal at approved dockside or onshore collection and treatment facilities.
"(b) An incinerating device which will reduce to ash all sewage produced on the watercraft. The ash shall be disposed of onshore in a manner which will preclude pollution.”
Section 11, MCL 323.341; MSA 3.533(211), reads:
"Any person who violates any provision of this act is guilty of a misdemeanor and shall be fined not more than $500.00. To be enforceable, the provision or the rule shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations.”
The claimed ambiguity arises when one reads § 3(1) to state: "A person shall not * * * discharge * * * into or onto the waters of this state, any * * * sewage * * * which render[s] the water unsightly, noxious or otherwise unwholesome * * *.” Read in this fashion, the language is in conflict with the more absolute prohibitions of §§ 3(2) and 4(2) because the discharge of "adequately treated” sewage might not violate § 3(1) but would violate §§ 3(2) and 4(2). Plaintiffs and the other courts which have addressed the issue assert that this alleged ambiguity requires judicial reconciliation.
Ill
The threshold issue is whether the WPCA is ambiguous or inconsistent. If the act is clear and unambiguous, then judicial construction or interpretation is unwarranted. Detroit v Redford Twp, 253 Mich 453, 455-456; 235 NW 217 (1931), Luyk v Hertel, 242 Mich 445, 448; 219 NW 721 (1928).
We hold that the WPCA is unambiguous and that it prohibits the discharge of all sewage, whether adequately treated or not. Plaintiffs’ argu ments and the prior court decisions are based on a misreading of the WPCA, particularly § 3(1). That section reads:
"A person shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any litter, sewage, oil or other liquid or solid materials which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes.”
The critical language is the modifying clause which reads: "which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes”. Plaintiffs assert that this language modifies all of the preceding subjects — i.e., "litter, sewage, oil or other liquid or solid materials”. We disagree. A close reading of § 3(1) in conjunction with the act as a whole reveals that the aforementioned clause only modifies the words "liquid or solid materials”.
Discharge of litter, sewage or oil (as defined in § 2 of the WPCA) into water obviously would "render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes”. The discharge of all "other liquid or solid materials”, however, would not necessarily have the same impact on the quality of water. The modifying language is essential to limit the scope of the last subject in the list, but it should not be read to qualify the prohibition against the discharge of sewage.
A reading of the WPCA as a whole persuades us that the discharge of sewage from watercraft is absolutely prohibited. "Sewage” is defined as "all human body wastes, treated or untreated”. MCL 323.332(d); MSA 3.533(202)(d). Section 3(2) makes it unlawful to discharge sewage from a watercraft. Section 4(2) prohibits the use of a marine toilet on a watercraft unless the toilet is equipped with either a storage tank or an incinerator. Even the ash from the incinerator must be disposed of onshore. There is no room in this legislation for a construction which would allow the discharge of "treated sewage”. Whether treated or untreated, the WPCA requires onshore disposal of all sewage or sewage ash.
Plaintiffs further argue that § 11 of the WPCA indicates that the WPCA must be interpreted in conformity with Federal law. Section 11 would bar the enforcement of a WPCÁ provision which would cause a violation of Federal law. However, §11 does not prevent the enforcement of standards exceeding Federal requirements. The WPCA requirements will not cause a watercraft owner to violate Federal law or regulations. The act forthrightly sets stricter standards for Michigan waters.
We find that the WPCA unambiguously prohibits the discharge of all sewage, whether treated or untreated, from watercraft in Michigan waters. There is no room for judicial construction. Consequently, the judgments of the Mackinac County Circuit Court and the Court of Appeals are hereby reversed.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Per Curiam.
The appeal board’s determination that plaintiff’s claim for compensation became barred by limitation is reversed and the record is remanded to the board for determination of the merits of plaintiff’s said claim.
The Court notes that plaintiff’s claim was denied by the appeal board solely on strength of the limitational rule found in Hajduk v. Revere Copper & Brass, Inc., 268 Mich 220 and decisions following Hajduk; which decisions were overruled retroactively by Autio v. Proksch Construction Company, 377 Mich 517. On remand of this case the appeal board will disregard the aforesaid limitational rule.
The defendant-appellees proffer an additional question for review, in this form:
“Is there evidence in the record which will support a finding that plaintiff is disabled within the meaning of the workmen’s compensation act?”
This additional question is not open for review, same not having been included within the restrictive scope of the Court’s order of January 27, 1965, remanding the record to the appeal board with instructions 1, 2 and 3 as set forth therein, and the corresponding scope of the Court’s order of January 11, 1966, granting leave to review the appeal board’s determination on such remand.
No costs.
T. M. Kavanagh, C. J., and Black, Souris, Smith, O’Hara, and Adams, JJ., concurred.
Dethmers, J., concurred in result.
Kelly, J., did not sit. | [
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North, J.
Defendants were jointly tried and convicted of murder in the first degree. This appeal is by defendant Alex Wysocki. The people claim that as the result of a conspiracy between the defendants, and for a consideration of $500 paid by Wysocki to Sams, the latter shot and killed the wife of the former. The motive for the crime was the alleged infatuation of Wysocki for another woman who had been in his employ. In consummating the crime it was arranged that Wysocki would take his wife in an automobile, that Sams in another automobile would overtake and crowd Wysocki to the curb for the apparent purpose of consummating a hold up and incident thereto would shoot Mrs. Wysocki. The killing was carried out on May 28, 1932, substantially as planned. Defendants were arrested in August following. Sams subsequently made two alleged confessions, each of them being practically in accord with the foregoing statement. Later Sams disavowed the confessions; and along with Wysocki entered a plea of not guilty.
Referring to an incident which antedated the murder nearly three months, the assistant prosecuting attorney in his opening statement said:
“We will show you that * * * the defendant Wysocki reported to the police that he had been held up and that, I believe, $1,800 had been taken from him. We will show you that he made a claim upon that to the insurance company and was paid. We will show you that that was not a hold up, but a fake hold up. ’ ’
Subsequently the prosecution offered testimony in support of the above-quoted statements; and such testimony was received over the objection that it was too remote, not relevant, not connected with the crime charged, prejudicial, and that it tended “to show an entirely different offense.” We think this constituted reversible error. Careful consideration of the record reveals nothing which in any tangible way connects the “fake hold up” with the crime with which defendants were charged or with the alleged conspiracy between defendants to commit the crime. It is stated in the people’s brief:
“Indeed, it would be absurd in this case for the State to contend that evidence of the commission of a larcenous offense on the 5th day of March (1932) would furnish any substantive proof of an intent to commit conjugal homicide on the 28th day of May. Decidedly, that was not the purpose of the testimony. It is one of the exceptions to the general rule that where testimony of the commission of another offense is merely incidental to another and relevant fact, it may be received without prejudice.”
The theory of admissibility just above noted is not here applicable. The alleged “fake hold up” was in no way incidental to the murder charged against these defendants, nor was it incidental to any fact or .circumstance which was relevant or material to the offense charged. Instead it tended strongly to establish appellant’s guilt of obtaining a large sum of money by false pretenses, an entirely separate and independent felony. Act No. 328, Pub.' Acts 1931, § 218. The testimony received was prejudicial and necessitates reversal.
Appellant also assigns error upon the admission of Sams’ confession as evidence not only of Sams’ guilt but also as tending to prove the guilt of Wysocki. The confession or statement of Sams taken on August 25th was made in the presence of Wysocki, the assistant prosecuting attorney and other officers. Both defendants were then under arrest, Sams’ statement was taken in shorthand and later transcribed. It was a detailed recital of the arrangement made by defendants to commit the crime and of its consummation. When this confession was offered in evidence the following’ occurred:
“Mr. Ricca: If the court please, I want the objection to all of the testimony, as it is Sams’ and does not apply to Wysocki.
“The Court: As I understand it, both were there so that this would apply to both.
“Mr. Ring: No, your honor. I think the jury should be excused while we thrash it out.
“The Court: I don’t think so. There are certain legal features on which we can instruct the jury, or you may prefer a request to charge.
“Mr. Ring: There-was an absolute denial on the part of Wysocki, and then the law says it does not apply.”
As stated by counsel in the record just above quoted, there was at the time an ‘ ‘ absolute denial on the part of Wysocki” in so far as Sams’ statement implicated Wysocki. It is true, as urged in the people’s brief, that Wysocki at the time made some “false, conflicting and inconsistent assertions;” but he in no way admitted as true Sams’ incriminating accusation. He did not acquiesce by silence. Instead he promptly, emphatically and unequivocally denied the statement; and such denial was made by Wysocki at his first opportunity to do so. The record discloses the following:
“Q. (by assistant prosecutor) Alex (Wysocki), did you hear the statement that was given to me by Ira Sams?
“A. Yes, sir.
“Q°. And is it true?
“A. No, sir.”
A little later, as Sams was continuing his statement, he was interrupted by Wysocki who asked: “How can you tell that story?”
Clearly the statement or admission by Sams, although made in Wysocki’s presence, under the circumstances above noted was not binding upon Or admissible as evidence against the latter. Notwithstanding the trial court was then informed that the statement about to be read to the jury was denied by Wysocki, the ruling of the court admitting it was:
“As I understand it, both were there so that this would apply to both. ’ ’
This was erroneous and prejudicial to appellant. It was not corrected in the charge of the court to the jury. Because the case must be reversed on other grounds, we need not give consideration to the effect of the failure of appellant’s counsel to request a charge covering this phase of the case, nor need we determine whether the giving of such a charge would have corrected the error committed. Likewise there is no occasion for considering the claim made in behalf of the people that appellant’s counsel both by statements made to the court and by a request to charge “invited” the error above noted.
The people’s case was presented on the theory that there was a conspiracy between the defendants to commit the murder charged. While the record is not altogether clear, it is a fair inference that it was because of such alleged conspiracy that the statement made by Sams was allowed to go to the jury as evidence not only of his guilt but also of the guilt of Wysocki. Clearly a statement of Sams made weeks after the alleged conspiracy was fully consummated was not admissible against tbe co-conspirator. The rule of evidence is thus stated:
“Even if a conspiracy is shown aliunde, the declarations of one conspirator are not admissible against the others, if made after the common design is accomplished or abandoned.” 2 Jones’ Commentaries on Evidence (2d Ed.), § 943.
See, also, Logan v. United States, 144 U. S. 263 (12 Sup. Ct. 617); Brown v. United States, 150 U. S. 93 (14 Sup. Ct. 37); 3 Encyclopedia of Evidence, p. 430, citing many cases.
The conviction of appellant is set aside and a new trial granted. Defendant remanded to custody of sheriff of Wayne county.
Fead, Wiest, Btttzel, and Edward M. Sharpe, JJ., concurred with North, J. | [
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Kavanagh, J.
This is an appeal from a Worker’s Compensation Appeal Board decision ordering the Second Injury Fund to pay differential benefits to plaintiff from seven years prior to the date he filed his application for benefits. The Second Injury Fund argues that the "one-year-back” rule in MCL 413.14; MSA 17.188, currently, MCL 418.833(1); MSA 17.237(833)(1), precludes the retroactive award of benefits for any period which antedates the filing of plaintiff’s application by one year.
We hold that the one-year-back rule is inapplicable to this case and affirm.
I
Preston Martin has been receiving total disability benefits from his employer since he injured his lower back on November 11, 1963. On December 11, 1972, plaintiff filed a petition seeking differential benefits from the Second Injury Fund. He asserted that his condition had worsened and that he had become totally and permanently disabled from the back injury due to the loss of industrial use of both legs. MCL 418.361(2)(g); MSA 17.237(361)(2)(g).
A hearing was held in February 1974, and the hearing referee determined that plaintiff became permanently and totally disabled in August of 1965. He ordered the Second Injury Fund to commence paying differential benefits from August 1, 1965. This antedated the filing of plaintiff’s application for benefits by seven years and five months.
The employer and the Second Injury Fund appealed the referee’s order to the WCAB, arguing that plaintiff had failed to sustain his burden of proving the loss of industrial use of his legs. The Second Injury Fund also raised the issue of the applicability of the one-year-back rule, arguing that it should not be liable for payments of benefits prior to December 1, 1971.
The appeal board affirmed the referee’s determination of plaintiff’s permanent and total disability and held the one-year-back rule inapplicable.
The Court of Appeals denied leave to appeal, but this Court agreed to hear the Second Injury Fund’s appeal, limited to the issue of whether the appeal board erred in refusing to limit the Second Injury Fund’s liability in accordance with the one-year-back rule in MCL 413.14; MSA 17.188.
We hold that it did not.
II
At the time of the claimant’s injury the one-year-back rule provided:
"If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application.” MCL 413.14; MSA 17.188.
In ruling on the applicability of the rule the WCAB said:
"Section 418.833, the one-year-back rule, precludes an order of benefits for 'any period which is more than 1 year prior to the date of filing’ of 'an application for further compensation.’ Plaintiff’s original application resulting in the 1965 award was for general disability benefits. The 1972 application currently before us seeks benefits for total and permanent disability, an entirely different category. Halas v Yale Rubber Mfg Co, 381 Mich 542 [164 NW2d 15] (1969). The limitations imposed by section 418.833 are therefore inapplicable to the instant case. Morgan v Lloyds Builders, Inc, 344 Mich 524 [73 NW2d 880] (1955).”
The argument of the Second Injury Fund in essence is that the one-year-back rule admits of no exceptions and consequently every claim for compensation after compensation has once been paid is an application for "further compensation” subject to the rule.
While it may be literally true that once a worker has received compensation any compensation paid to that worker thereafter may be termed "further compensation” that phrase in the one-year-back rule has not been so read over the years.
In Morgan v Lloyds Builders, Inc, 344 Mich 524; 73 NW2d 880 (1955), the Court said:
"We find that the petition entitled, 'application for hearing and adjustment of claim,’ filed by the plaintiff dated July 28, 1953, is not a petition for further compensation for loss of time or employment, but is a petition for loss of vision in the right eye. Without any deduction for the compensation heretofore paid for loss of time or employment, plaintiff is entitled to receive compensation for specific loss of eye, according to [MCL 412.10; MSA 17.160] of $26 per week, for a total of 150 weeks from May 9, 1951.” Id., 528-529,
and refused to apply the one-year-back rule.
The WCAB has correctly regarded Morgan as authority for distinguishing among "categories” of disability in determining whether an application is for "further compensation” within the rule.
Resumption of payment for the same category of disability results in "further compensation” subject to the one-year-back rule. Lynch v Briggs Mfg Co, 329 Mich 168; 45 NW2d 20 (1950).
If compensation is paid for a particular disability (general on account of back injury) and subsequently another disability is determined (total and permanent on account of loss of industrial use of legs) compensation for the second disability is not "further compensation” subject to the one-year-back rule but is a separate "category” not so limited. Morgan, supra.
In this case no compensation has been paid for the "total and permanent” disability resulting from the loss of industrial use of claimant’s legs and hence the award of differential benefits is not "further compensation” subject to the one-year-back rule.
Affirmed.
No costs.
Coleman, C.J., and Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Kavanagh, J. | [
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Sharpe, J.
This is an action by plaintiffs to recover unpaid salaries of approximately 800 school teachers of the city of Detroit. Plaintiffs ’ assignors were employees of the board of education of the city of Detroit during the months of May and June, 1932.
Because of the economic depression and resulting inability of the taxpayers of the school district to pay their taxes, it was deemed necessary to effect certain economies in order to continue the operations of the schools. On May 10,1932, the board of education adopted a resolution which provided in part as follows:
“Whereas, unless the economies provided for by the reduction in salaries and compensation as fixed in this resolution are made effective it will be necessary to close the schools for the month of June, 1932, thereby providing no employment or compensation for teachers and other employees during that'period. Therefore, be it
“Resolved, that all officers, teachers and employees of the board of education of the city of Detroit working on a 12-month basis contribute a sufficient number of days’ work each pay period during the months of May and June, 1932, without pay therefor, so that the amount of such contributions will equal one-half of his or her salary or compensation for said months; and further, that all officers, teachers and employees of the board of education of the city of Detroit working on a ten-month basis contribute a sufficient number of days’ work each pay period during the months of May and June, 1932, without pay therefor, so that the amount of such contributions will equal 41% per cent, of his or her salary or compensation for said months. * * *
“Resolved, that if any officer, teacher or employee of the board of education of the city of Detroit shall refuse or fail to make such voluntary contribution of time as specified herein, then this resolution shall be construed and it is intended as a compulsory reduction of his or her salary or compensation or pay on the basis of the percentage as outlined in the first proviso hereof. ’ ’
The board of education in its resolution provided a condition in the form of an indorsement on each check issued under which the employee accepted his pay for the services for the months of May and June, 1932 which reads as follows:
“The indorsee of this check agrees and consents to be bound by the terms and conditions and considerations of the resolution adopted by the board of education on the 5th day of May, A. D. 1932, and further waives any rights to sue the board of education of the city of Detroit for salaries, wages, or other compensation which may be effected by said resolution.”
In the course of time- by means of the seven-year plan, tax suits and other methods of collection, the city proceeded to collect delinquencies in the taxes so that by June 30, 1943, 98 or 99 per cent, of the delinquencies had been collected. Interest and penalties were also collected on these taxes and the city had realized considerable by withholding certain properties for public use under the scavenger act. On May 19, 1937, the "board of education paid to plaintiffs’ assignors and other employees 20.83 per cent, of the salaries for the months of May and June, 1932.
On May 11,1943, plaintiffs -commenced the instant action to recover the remaining 20.83 per cent, of the salaries for the months of May and June-, 1932 together with interest on said amount. Plaintiffs’ assignors each executed an assignment to plaintiffs before action was started.
On June 26,1945, the board of education voted to order the payment of the balance owing the board of education employees without interest and subject to a proposed release of all claims.' Checks were issued but not accepted by any of the plaintiffs. Subsequently, the case came on for trial and at the close of all evidence both parties moved for a directed verdict. The trial judge directed the jury to return a verdict in favor of the plaintiffs in the sum of $124,018.79 which was'accordingly entered.
Defendants appeal and urge that the cashing of the checks issued in 1932 with the condition thereon stated, constituted an accord and satisfaction and a settlement of the difference between the parties.
Prior to Act No. 238, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 13433-1, Stat. Ann. 1946 Cum. Supp. § 26.978[1]), it was settled law in this State that when the amount claimed was liquidated, a purported release for a lesser amount was without consideration and void.
In People, for use of Zeeland Brick Co., v. Fidelity & Deposit Co., 195 Mich. 738, we said:
“Under the law in this State there is no doubt that a payment of less than the full amount of a past-due liquidated and undisputed debt, although accepted and receipted for as in full satisfaction, is only to be treated as a partial payment, and does not stop the creditor from suing for and recovering the balance. ’ ’
See, also, Aston v. Elkow, 279 Mich. 232, and Spinning v. Millsite Steel & Wire Works, Inc., 304 Mich. 651.
The trial judge in determining whether the claim was liquidated or unliquidated said:
“ The claim, in my opinion, is a liquidated claim. It is definite and it is certain. I do not think there was ever or is now any question as to the amount owing to these teachers in this litigation. The acceptance of the checks for less than the full amount due by indorsing them under the printed matter, which was printed on the back of the checks, was, in my opinion, without consideration, and that being the case there can be no accord and satisfaction. That is the ruling of the court, and the motion is denied.”
There is competent evidence in the record to support the finding of the trial court that the claim is a liquidated claim and we so hold.
It is next urged that plaintiffs were not entitled to interest from June 15, 1932, to May 19, 1937, as plaintiffs did not allege and prove an assignment of the claims for interest. The declaration filed by plaintiffs sets up that there were wage-claim assignments in accordance with a list of assignors and amounts appended to the declaration; and that one half of the amount withheld in 1932 was paid in May, 1937. The declaration in part states:
“That although the said salaries for the months of May and June, 1932 were duly and fully earned by the employees of the city of Detroit who are represented in this suit by the plaintiffs having long since been due and unpaid and the moneys which were assessed against the taxpayers of said city^of Detroit to pay such salaries have long since been collected and are in the hands of the defendant, city, still the said defendant has neglected and failed to pay the balance of the moneys owing to the employees of the city who are represented in this suit by the plaintiffs, and the same are still due and owing together with interest thereon at the rate of 5 per cent, per annum from the 30th day of June, 1932, to the date of judgment herein.”
The assignment, in part, reads as follows:
“Now, therefore, undersigned for one dollar and other valuable consideration to him/her in hand paid, does hereby and by these presents give, sell, transfer, set -over and assign all of his/her right, title and interest to all of said claim in whatsoever amount, with interest, to Ed Thai, Earl Scott, Prances Comfort, Lawrence Stranahan, Clifford Moore, Prank X. Martel, Prank De Coster or their successors, as a committee.”
In onr opinion the assignment clearly assigns whatever interest the assignor has in his or her claim to plaintiffs and the declaration in unqualified terms states that the amount claimed is for both principal and interest. In Patrons’ Mutual Fire Insurance Co. of Michigan v. Helli, 232 Mich. 446, we held that interest may be recovered, although it is not claimed or demanded in the declaration. See, also, Hollingsworth v. Liberty Life Insurance Co. of Illinois, 241 Mich. 675.
Defendants also urge that plaintiffs are only entitled to interest from May 11, 1943, the date of the commencement of suit, upon the theory that a claim against a municipality, although liquidated and due, does not draw interest until demand has been made for its payment.
In deciding this question the trial court stated:
“As I understand the law, even as applied to a municipal corporation, the law does not require, either individuals or corporate entities to indulge in idle ceremony, or, as one case that has been argued here uses the term, a useless or idle gesture. These people could have demahded from the house tops every day for five years, and they would have received nothing. The city and the board of education knew they did not have the money; they said so, and they said so by a legislative act. The legislative body of the city of Detroit announced we have no money to pay these teachers by ordinance 166C, and the board of education did the same thing by resolution. Under those circumstances, a demand is useless, futile and idle, and is not required.
“Assuming, although I do not so hold, that no demand was ever made, — I do not suppose that any of these assignors ever made a demand personally, unless maybe Miss Comfort might have sometime; but, acting through their federation of labor, which represented them, as the proofs show, there is evidence in the record that at different times requests and demands were made that money be appropriated or set up in the budget to pay. But, passing that by, in my judgment, under the peculiar facts as undisputed on this record,- as shown by this record, no demand was necessary.”
In Detroit Municipal Employees Ass’n. v. City of Detroit, 310 Mich., 480, approximately 1,500 city employees assigned wage claims to plaintiff association which began action to recover a deduction from their pay during May and June, 1932. “We there held that the cashing of reduced semimonthly pay checks of 1932 by city employees constituted no bar to the action; and that the subsequent payment in 1937 of part of the withheld amount waived or obviated the need of subsequent presentation for the remainder, of the claims to the common council for audit. In our opinion no demand was necessary after the adoption by the-board of education of the resolution of January 12,1932. Under such circumstances a demand would have been an idle gesture and a useless formality. See, also, Weinburgh v. Saier, 303 Mich. 640.
It is also urged that the trial court was in error in denying the motion to dismiss the case against the city of Detroit, as a party defendant, upon the theory that plaintiffs’ assignors were not in the employ of the city of Detroit, but were employees of the board of education of the city of Detroit.
The board of education of the city of Detroit is a corporation by virtue of the provisions of 2 Comp. Laws 1929, § 7277 (Stat. Ann. § 15.265).
In the charter of the city of Detroit under title 6 (finance and taxation), chap. 1, § 1 (as amended September 9,1930, in effect September 26,1930), the following is provided :
“The various officers, departments, commissions and boards of the city created by law and this charter, or hereafter created, and required so to do by law, shall respectively transmit in duplicate to the city controller for compilation on or before the second day of January, in each year, their estimates of the amounts of money required for each activity within their respective departments for the ensuing fiscal year. ’ ’
Under the above section, the board of education must submit to the city controller an annual budget. The amount of its requirements is levied with the regular taxes as a school tax and is not separated. The city is the only tax-raising authority in the city of Detroit for the city of Detroit and the taxes so raised pay the expenses and indebtedness - of the board of education. No funds are carried in the name of the board of education. The city issues the pay checks of the teachers. Under such circumstances the city is a proper party to this action.
The judgment is affirmed, with costs to plaintiffs.
Butzel, C. J., and Carr, Bushnell, Bowles, Reid, North, and Dethmers, JJ., concurred.
See Aet No. 155, § 5, Piib. Acts 1937, as amended by Act No. 159, Pub. Acts 1943 (Oomp. Laws Supp. 1943, § 3723-5, Stat. Ann. 1944 Oum. Supp. § 7.955).—Reporter. | [
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Boyles, J.
This is an action originally instituted ' by Murray M. Ashbaugh, receiver of the First National Bank of Birmingham, to recover a deficiency on a mortgage foreclosure against defendant, Norma C. Hackett. The mortgage, dated January 9, 1931, covers lands situate in Oakland county, and secures an indebtedness evidenced by a promissory note of the same date in the sum of $6,000. The mortgage was recorded in the register of deed’s office of Oakland county on February 26, 1931, and ran to William U. Clark and Leone O. Clark, his wife. On April 1,1931, the Clarks sold and assigned the mortgage to the First National Bank of Birmingham, which assignment was recorded on April 2, 1931.
On January 15, 1942, Ashbaugh, as receiver of the bank, assigned the note and mortgage to W. B. Kramar, reciting in the assignment that Mrs. Hackett was indebted to the bank in the sum of $9,414.55, as of August 27, 1941.
Mrs. Hackett denied liability, claiming 'that she never executed the note and mortgage. On the is sues thus framed, a trial was begun before a jury on April 12, 1943. Mrs. Hackett when called for cross-examination again denied the execution of the instruments. Receiver Ashbaugh testified that he at one time discussed the matter with Mrs. Hackett in the presence of a representative of the comptroller of the currency and that, while she at first denied signing the note and mortgage, she later admitted that it was her signature thereon. Ashbaugh further testified that the original bank files had been destroyed and that he had no idea of the whereabouts of the original mortgage. With this foundation, plaintiff then offered in evidence a photostatic copy of- the mortgage, certified by the register of deeds for Oakland county, as having been taken from liber 668, mortgages, pages 665 to 666. Defendant’s counsel objected to ‘the admission of the photostatic copy and the court sustained the objection pending further inquiry as to the location and existence of the original mortgage. In the meanwhile a handwriting expert testified as to the signature of Mrs. Hackett. Ashbaugh was later recalled and testified that he had again made, a diligent search and was unable to locate the original instrument. The photostatic copy was again offered, the same objection was made, and the court declined to receive it. Plaintiff then rested and the defendant moved to enter an order directing a verdict of no cause of action. In the discussion on the motion, counsel for plaintiff insisted that the court was in error in excluding the copy and directed,the court’s attention to 3 Comp. Laws 1929, § 14175 (Stat. Ann. § 27.870), in support of his argument. The record then shows that the jury was returned to the courtroom, and the court stated:
“During your absence we have had a discussion with respect to the admissibility in evidence of the proposed exhibit 7, and the . Court has now ruled that it may be received in evidence.”
Ashbaugh was recalled and testified further, and the handwriting expert also repeated his testimony. Mrs. Hackett then testified at length in rebuttal, still denying'the genuineness of her signature.
The only question submitted to the jury was whether or not Mrs. Hackett had signed the note and mortgage. On this phase of the case the jury, on April 15, 1943, rendered a verdict in favor of plaintiff and against the defendant, “finding that the signature on note and mortgage was the signa-, ture of the defendant. ’ ’
Following the verdict of the jury as to the signature, the trial' judge took proofs as to the value of the real estate at the time of the mortgage foreclosure and heard arguments of counsel thereon. The testimony shows that at foreclosure sale the property was sold for $650. The trial judge concluded, however, as indicated in the opinion filed when a motion for new trial was denied, that the amount bid was inadequate and he therefore reduced the plaintiff’s damages. Judgment was entered in the sum of $7,252.51.
On appeal, defendant appears in her own person and argues that the court erred in permitting the introduction of the photostatic copy and in receiving the testimony of a handwriting expert thereon. She also contends that the court erred in admitting the assignment of the mortgage and in denying her motions for a directed verdict and for a new trial.
The controlling question is whether, under the circumstances disclosed in this record as to the inability to produce the original mortgage, a photostatic copy thereof, certified by the register of deeds of Oakland county, was admissible.
The general rule is well recognized that the best evidence is the original instrument, Wuerth v. Frohlich, 251 Mich. 701, and that secondary evidence is not admissible without proof that the original is lost or otherwise beyond the power of the party to produce it, Paul v. University Motor Sales Co., 283 Mich. 587. There is ample proof in this reccfird to justify the admission of secondary evidence because of the inability to produce the original document. The question of the loss or inability to produce the original document is not one for the jury, but is a question to be determined by the trial judge. Thomson v. Railroad Co., 131 Mich. 95, and Gelder v. Welsh, 169 Mich. 490.
It would be sufficient to hold that the trial judge properly admitted the photostatic copy of the mortgage. However, the legislature has spoken on the subject and the court had before it not only the statute cited by defendant’s counsel hereinbefore noted, but also the companion statute, 3 Comp. Laws 1929, § 14174 (Stat. Ann. § 27.869), which reads:
“All conveyances and other instruments authorized by law to be filed or recorded, and which shall be acknowledged or proved according to law, and if the same shall have been filed or recorded, the record, or a transcript of the record, or a copy of the instrument on file certified by the officer in whose office the same may have been filed or recorded, may be read in evidence in any court within this State without further proof thereof; but the effect of such evidence may be rebutted by other competent testimony.”
See, also, 3 Comp. Laws 1929, § 14173 (Stat. Ann. § 27.867).
Rebuttal testimony was received as indicated by the statute and the jury weighed the testimony that was so produced. Under the authorities cited and the statute quoted the photostatic copy of the mortgage was properly received in evidence.
The trial court in discharging the jury and determining the value of the property without the jury evidently relied on a provision in Act No. 143, § 1, Pub. Acts 1937 (Comp. Laws Supp. 1940', § 14444-21, Stat^Ann. 1946 Cum. Supp. §27.1335), as follows: “Provided, That such issue shall be determined by the court without a jury.” The trial court obviously overlooked the fact that this proviso has been declared unconstitutional. Guardian Depositors Corporation v. Darmstaetter, 290 Mich. 445. However, no objection was raised before the trial court as to the practice thus adopted, no such issue is raised here, no harmful result has followed, and the parties have acquiesced in such procedure.
We find “no reversible error in the trial and the judgment entered upon the jury’s verdict and the court’s finding is affirmed. Costs to appellee.
Butzel, C. J., and Carr, Sharpe, Reid, North, and Dethmers, JJ., concurred. Bushnell, J., did not sit. | [
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Blair Moody, Jr., J.
On August 20, 1974, defendants Steven Michael Gay and Donald Lee Gerlofs were charged in the United States District Court for the Western District of Michigan with bank robbery, assault with a dangerous weapon while committing a bank robbery and taking the life of teller Connie Marie Adams while committing a bank robbery. 18 USC 2113(a); 18 USC 2113(d); 18 USC 2113(e). After a joint Federal jury trial which commenced October 14, 1974, defendant Gay was found guilty on all three counts and was sentenced to life imprisonment. Defendant Gerlofs was convicted on the first two counts, but acquitted of killing a teller while committing a robbery.
Concurrently, under Michigan’s jurisdiction, defendants were charged in Kalamazoo Circuit Court with murdering Connie Marie Adams during the commission of an armed robbery, contrary to MCL 750.316; MSA 28.548. Following their conviction in Federal court, each defendant moved to dismiss the state prosecution on grounds that trying them on murder charges in Michigan would constitute double jeopardy. The cases were consolidated for purposes of the motion and heard before Circuit Judge Lucien F. Sweet. On December 30, 1974, the motion was denied as to both defendants.
Subsequently, on March 10, 1975, Judge Robert L. Borsos, successor to Judge Sweet, issued an order to stay proceedings pending an interlocutory appeal to the Michigan Court of Appeals, testing the prior denial of defendants’ motion to dismiss. On July 7, 1975, the Court of Appeals denied the appeal on the authority of its decision in People v Cooper, 58 Mich App 284; 227 NW2d 319 (1975). This Court denied defendants’ interlocutory appeal on October 16, 1975. 395 Mich 768 (1975).
Defendant Gay appealed his Federal conviction. The United States Court of Appeals reversed that conviction on the basis of error in the jury selection process. United States v Gay, 522 F2d 429 (CA 6, 1975). Shortly afterward, defendant Gay pled guilty in Federal District Court to the three charges on which he had been convicted originally and was sentenced to 99 years imprisonment. Defendant Gerlofs has not appealed his Federal conviction.
Defendants were separately tried in state court on the murder charges. Defendant Gerlofs was convicted by jury on August 7, 1975. Defendant Gay was similarly convicted on October 15, 1975. They were both sentenced to life imprisonment.
Both defendants appealed their convictions to the Michigan Court of Appeals. Subsequent to filing appeal but prior to decision, this Court issued its opinion in People v Cooper, 398 Mich 450; 247 NW2d 866 (1976). Consequently, on June 16, 1977, pursuant to defendant Gerlofs’ motion for peremptory reversal, the Court of Appeals remanded that case to circuit court for reconsideration of an alleged double jeopardy violation in light of Cooper.
On remand, Judge Borsos found that defendant Gerlofs had been twice placed in jeopardy and therefore dismissed his state conviction of murder. The Court of Appeals affirmed in an order issued on December 7, 1977, granting defendant’s original motion for peremptory reversal. A similar order was entered as to defendant Gay on January 6, 1978. The prosecutor applied to this Court for leave to appeal, and leave was granted as to both defendants. 402 Mich 939-940 (1978).
We granted leave to resolve two questions: (1) whether, under the guidelines established by this Court’s decision in People v Cooper; the prosecution of defendants in a Michigan court subsequent to their conviction in Federal court for the same act violates Const 1963, art 1, § 15, placing them twice in jeopardy; and (2) whether this Court’s decision in People v Cooper must be applied retroactively.
We hold that the interest of the State of Michigan in trying these defendants for murder does not differ substantially from the interest previously addressed in defendants’ Federal prosecution. Accordingly, we find that subsequent trial in this state for the same act violated the Michigan constitutional prohibition against double jeopardy. We also hold that this Court’s decision in People v Cooper must be accorded retroactive effect.
I
This Court broke with Federal precedent and held in People v Cooper that limitations did exist under the Michigan Constitution upon the state’s ability to prosecute a defendant in a state court following a conviction in Federal court for crimes arising out of the same acts. 398 Mich 457, 460-461. We recognized in Cooper that state criminal justice systems must retain their strength and independence. This principle of dual sovereignty has long maintained ascendance in the American system of justice. In fact, the Federal precedent established prior to our decision in Cooper largely bases its authorization for dual prosecution on this principle. See Bartkus v Illinois, 359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959); Abbate v United States, 359 US 187; 79 S Ct 666; 3 L Ed 2d 729 (1959).
However, we found that emerging Federal trends in recent years and the dictates of our own Constitution required us to impose limits on what dual sovereignty would permit. We held that where a criminal act involves the legitimate interests of both the state and Federal governments and the Federal criminal prosecution cannot adequately represent the state’s independent interests, then the state in those rare instances is justified in protecting its interest by prosecuting the defendant, even after conviction or acquittal in Federal court. 398 Mich 459-460. Dual prosecution of these differing interests violates neither the Federal nor Michigan Constitution. See US Const, Am V; Const 1963, art 1, § 15. See also Bartkus v Illinois, supra, 137.
On the other hand, this Court also recognized the fundamental need to safeguard defendants’ constitutional rights. We therefore prohibited dual prosecution where the interests of the state are not "substantially different”. People v Cooper, supra, 461. Distinct risks and penalties arise for defendants from the very fact of multiple prosecution, among which are (1) continued embarrassment, expense and ordeal; (2) being compelled to live in a continuing state of anxiety and insecurity; and (3) the possibility that even though innocent they may be found guilty through repeated prosecutions. See United States v Wilson, 420 US 332, 343; 95 S Ct 1013; 43 L Ed 2d 232 (1975); Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957).
When weighed against the interest of the state in dual prosecutions, we concluded that the defendant’s right not to be twice tried and convicted prevailed and that second prosecutions were prohibited unless the record demonstrated substantially different state interests. People v Cooper, supra, 461. See also Commonwealth v Mills, 447 Pa 163; 286 A2d 638 (1971); State v Hogg, 118 NH 262; 385 A2d 844 (1978). We rested our decision on Const 1963, art 1, § 15. See People v Beavers, 393 Mich 554, 567-568; 227 NW2d 511 (1975).
Cooper represents a strong and uncompromising statement by this Court that a defendant’s right not to be twice tried in Federal and state court for the same criminal act will be jealously guarded except in extreme cases where Federal laws are framed to protect substantially different social interests. 398 Mich 459. Cooper makes clear that as a firm rule dual prosecution ordinarily will not be tolerated in Michigan. It is only in the rare instance where the social interests of the state are not addressed in substance by the Federal statute that a second prosecution will be allowed. Further, since this safeguard of defendant’s right against double jeopardy is of a constitutional magnitude, it must receive this Court’s close consideration. It is thus within this context that our Court determines whether a possible second prosecution may be allowed.
Cooper accounts for rare exceptions to the rule by suggesting certain conditions for the limited instances when such prosecution will be allowed. These guidelines are "nonexclusive” in the sense that other factors militating against dual prosecution and in favor of protecting defendant’s constitutional right may be considered. See People v Formicola, 407 Mich 293, 298; 284 NW2d 334 (1979). The guidelines stated in Cooper include whether the maximum penalties of the statutes involved vary greatly, whether some cause exists to believe the Federal court cannot adequately vindicate the state interest in obtaining a conviction, and whether the differences in the statutes are merely jurisdictional rather than substantive. People v Cooper, supra, 461.
The first factor suggested is "whether the maximum penalties of the statutes involved are greatly disparate”. The "maximum penalty” which this Court considers in relation to allowing dual prosecution is the potential statutory sentence, not the actual sentence assessed. What we compare in this case is the maximum possible sentence in Federal court for killing during a bank robbery as against the maximum possible sentence in Michigan for murder during an armed robbery. The potential maximum sentences are the focus of any inquiry.
To discern what was meant by this first factor, an analysis of the maximum penalties involved in Cooper is enlightening. In Cooper, the defendant was acquitted in Federal court under the Federal bank robbery statute. 18 USC 2113(a). Before the Michigan Supreme Court he stood convicted of bank robbery, MCL 750.531; MSA 28.799, and assault with intent to rob being armed, MCL 750.89; MSA 28.284. The Federal maximum penalty provided that a defendant upon conviction shall be "fined not more than $5,000 or imprisoned not more than twenty years, or both”. On the other hand, the maximum Michigan penalty for bank robbery and for the assault conviction each provided for imprisonment in the state penitentiary for life or any term of years.
Accordingly, in Cooper, the disparity between the maximum penalties possible under the Federal and Michigan statutes involved the difference between a $5,000 fine and 20 years in prison as opposed to two concurrent sentences of life imprisonment. On its face, the distinction is most apparent. The potential Federal maximum is markedly less severe than its Michigan counterpart. Yet, the Court found that such varied sentences did not constitute penalties that were "greatly disparate” for purposes of allowing dual prosecution of the defendant in Michigan. 398 Mich 462.
Comparing the instant case, defendants both were accused in Federal court of taking the life of teller Connie Marie Adams while committing a bank robbery. In Michigan, authorities brought a single charge of felony murder. The maximum penalty under the Federal statute is a single term of life imprisonment. See United States v Atkins, 558 F2d 133, 137 (CA 3, 1977), United States v Faleafine, 492 F2d 18, 24-25 (CA 9, 1974). The penalty required under the Michigan statute is mandatory life imprisonment. Thus the two statutes facially share the same maximum potential punishment — life imprisonment. The Federal penalty is discretionary; the state penalty is mandatory. However, as Cooper clearly specifies, the test is not whether the penalties are similar, but whether the maximum Federal penalty is substantially different in relation to Michigan’s sovereign interest. 398 Mich 459, 461. See also, Turley v Wyrick, 554 F2d 840, 844 (CA 8, 1977) (Lay, J., concurring).
Consequently, in relation to the maximum penalties possible in Cooper, the potential maximum penalties involved in the present case are much less disparate as perceived in regard to the protection of Michigan’s penological interest. At the very least, the potential maximum punishment in these cases was in theory the same. In any case, as compared with Cooper, the maximum sentences in the instant cases cannot be discerned to be substantially different.
The prosecutor raises the argument that the Federal and state sentences vary in their provision for minimum prison terms served. It is urged that such an alleged variance constitutes a substantial difference under Cooper. The argument is premised upon the fact that under a Federal conviction for killing during the commission of a bank robbery the statute provides for a minimum sentence of ten years. No such minimum sentence is permitted under the applicable murder statute in Michigan. Conjoined with this argument is the further provision under Federal statutes that allows early release on parole upon proper application to Federal authorities. In contrast, Michigan statutes do not provide for parole in cases of murder committed during an armed robbery.
The analysis in Cooper centers upon the maximum sentences. The validity of this focus becomes apparent when attempting to make a comparative evaluation of potential minimum sentences and release requirements.
The minimum sentence and parole differences between the Federal and state penological systems are largely absorbed for purposes of analysis under Cooper by the fact that similar discretion for early release does exist in Michigan. Specifically, while under the Michigan penalty there exists no statutory minimum sentence for the court to impose and no executive provision for parole, there exists the broadest discretionary prerogative in the executive for reprieve, commutation and pardon.
In the instant cases, the Governor’s power to commute sentences would most likely apply. See 67A CJS, Pardon and Parole, §§ 32-38, pp 40-53. As regards the Governor’s action, there is no statutory minimum sentence. Under this power, there exists a potential discretion for early termination of imprisonment in Michigan as is present in the Federal system of minimum sentence and parole. The question of difference is not one of kind, but of degree and allocation of responsibility. Michigan provides discretion to limit sentences for murder committed during a robbery, but, instead of reposing that discretion in the trial court or parole board, this state places the responsibility in the parole board and chief executive.
It is worthy of note that parole from Federal prison is in no way an automatic occurrence. Parole is a mere matter of grace and lies entirely within the discretion of the Federal parole boards. 18 USC 4203, 18 USC 4208. See DeCosta v United States Dist Court, Dist of Minnesota, 445 F Supp 989, 991 (D Minn, 1978). United States v Freder ick, 405 F2d 129, 133 (CA 3, 1968); Williams v Patterson, 389 F2d 374, 375 (CA 10, 1968). A prisoner will not be paroled if there exists a substantial risk that the person will not conform to reasonable parole conditions or that release at an early date would depreciate the seriousness of the offense or promote disrespect for the law. See 67A CJS, Pardon and Parole, § 47, p 71. In other words, there is no certainty that defendants in the instant cases will be released at the point they become eligible.
Thus, in light of the risk of double jeopardy, Cooper properly concentrates upon the framework of the statutory maximum penalties. For instance, it would be an impossible and unjust task for courts to speculate about whether the sentence of a particular defendant will actually be commuted by the parole board and Governor in determining whether a second trial and punishment for the same criminal act can be assessed.
As another assertion, the prosecutor suggests that the subject Federal statutory punishment more readily comports with the state second-degree murder penalty. MCL 750.317; MSA 28.549. Thus, it is urged that the potential state sentence for felony murder is thereby significantly variant from the Federal penalty. To be sure, comparing the Federal penalty with the state second-degree murder punishment, the potential maximum sentences of life imprisonment are the same. However, it should not be overlooked that the potential maximum sentences in Michigan for first- and second-degree murder are facially the same — life imprisonment. We have resolved that the mandatory life — discretionary life difference does not make the potential maximum penalties "greatly disparate” under Cooper.
In addition, comparing the minimum sentence for second-degree murder in Michigan and the Federal crime of killing during the commission of a bank robbery, it is immediately apparent that the minimum sentence in Michigan for second-degree murder is potentially less severe than that for the Federal crime.
As was pointed out in People v Allen:
"[P]ersons convicted of second-degree murder may be sentenced to life imprisonment — parolable after ten years imprisonment — but, in the discretion of the sentencing judge,. they may be sentenced to any term of years, and many are placed on probation.” People v Allen, 39 Mich App 483, 502; 197 NW2d 874 (1972) (Levin, J., dissenting), rev’d on other grounds, 390 Mich 383; 212 NW2d 21 (1973) (adopting dissent of Levin, J.).
The obvious distinction appearing from this passage in Allen is that defendant’s possible minimum sentence for second-degree murder is any term of years and so may fall far below the ten-year minimum sentence required under the Federal code. In addition, a Federal sentencing court has absolutely no discretion to free defendants until they serve the minimum parolable sentence in prison.
Thus, we cannot accept the proposition that the state felony murder sentence is greatly disparate from the Federal penalty because the Federal sentence provisions are more akin to the state second-degree murder penalty. Ultimately, the actual life sentence to be served by a defendant under the two state statutes and the Federal code is within the discretion of designated officials depending upon the merits of the case.
The intent of the Cooper analysis is to focus upon and isolate differences in maximum sentences between the state and Federal jurisdictions. This is intended to demonstrate whether Michigan’s interest in protecting its citizens safety may be adequately acquitted by the Federal criminal trial. In the present case, it has been demonstrated that the maximum sentences for a killing which occurred during the commission of a bank robbery do not substantially differ as between the Federal penalties provided and their Michigan counterparts. The dissimilarity between mandatory life and discretionary life does not amount to a "greatly disparate” sentence causing the interests of the two sovereign jurisdictions to be at variance. Michigan’s public interest may be properly protected.
As for the second Cooper criterion, there is no basis on which to conclude that the Federal court could not adequately satisfy the state interest in obtaining a conviction. The record nowhere reflects an inability or unwillingness to cooperate between state and Federal criminal justice officials. As succinctly stated by the learned trial judge in Gerlofs’ case:
"The only way in which Michigan’s interests might not have been vindicated is if the Federal trial had not afforded the U.S. attorney a fair chance of conviction. In that case, this Court believes that the state might not be bound by an acquittal from that trial. But, there is no evidence before the court to indicate that. * * * This Court has no reason to doubt that Michigan’s interests in a conviction were vigorously, competently and swiftly pursued by Federal authorities in Federal court * * *.”
In fact, the Federal investigation and prosecution of the case was obviously a superior effort, given the fact that much of the evidence later introduced in the state trial was the result of the original FBI investigation and Federal trial preparation. The Federal trial of these defendants actually served as a "dry run” for the state prosecution.
Finally, the prosecutor urges that there is a substantive difference in the purposes of the Federal and state statutes under the third Cooper criterion. It is suggested that the Federal bank-robbery statute is directed primarily to insure the stability and integrity of Federal banks. See Way v United States, 268 F2d 785-786 (CA 10, 1959). However, the Federal statute protects and penalizes other interests coordinately. One of those interests is preventing the taking of human life during the perpetration of a bank robbery. This interest is clearly the same as Michigan’s interest in maintaining a like penalty for a murder which occurs during the perpetration of a named felony, e.g., robbery. See MCL 750.316; MSA 28.548. Separating the "interests” as the people suggest is not a reasonable distinction. Further, were we to recognize that the Federal and state interests differed here, the difference would not be substantial under Cooper. 398 Mich 461.
It cannot be ignored that the laws of both jurisdictions seek to insure the safety of individuals and the protection of private property. People v Cooper, supra, 462. In addition, the jury considered the same key elements and the same facts. We, therefore, cannot discern a state interest substantially different from those already addressed by the Federal government. Consequently, subsequent trials in this state for the same act would violate the Michigan constitutional prohibition against double jeopardy.
II
Having determined that the record in this case will not support a second prosecution under the guidelines established by People v Cooper, we must now decide whether that decision must be applied retroactively.
Historically, under the Federal system, decisions involving constitutional questions were invariably accorded retroactive effect. Norton v Shelby County, 118 US 425; 6 S Ct 1121; 30 L Ed 178 (1886). These decisions proceeded under the theory that the unconstitutional rule was "inoperative as though it had never been passed”. 118 US 442. As time progressed, the Federal courts began to recognize limited exceptions to the effect that judicial modification of prior interpretation should be given only prospective effect as to some parties under particular circumstances. See, e.g., Chicot County Drainage Dist v Baxter State Bank, 308 US 371, 374; 60 S Ct 317; 84 L Ed 329 (1940). What eventually emerged in Federal law was the recognition that the Constitution "neither prohibits nor requires retrospective effect”. Linkletter v Walker, 381 US 618, 629; 85 S Ct 1731; 14 L Ed 2d 601 (1965).
In determining whether to apply a rule retroactively or prospectively, the Court in Linkletter specifically articulated factors previously alluded to in Chicot County Drainage Dist, including the prior history of the rule in question; its purpose and effect; and whether retrospective application will further or retard its operation. Id. See also Tehan v United States ex rel Shott, 382 US 406; 86 S Ct 459; 15 L Ed 2d 453 (1966); Desist v United States, 394 US 244; 89 S Ct 1030; 22 L Ed 2d 248 (1969).
This Court adopted the Linkletter approach in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971). See also People v Kamin, 405 Mich 482; 275 NW2d 777 (1979). In Hampton the "key factors” to be taken into account were: (1) the purpose of the new rule; (2) the reliance on the old rule; and (3) the effect on the administration of justice. 384 Mich 674. As basic guidelines to assist in the resolution of whether a new judicial pronouncement should have fully retroactive, partially retroactive, or only prospective effect, these factors are germane and should be applied where appropriate.
However, the United States Supreme Court has since determined that the question whether a double jeopardy holding should be given retroactive effect is "not readily susceptible of analysis under the Linkletter line of cases”. Robinson v Neil, 409 US 505, 508; 93 S Ct 876; 35 L Ed 2d 29 (1973). The Court reasoned in Robinson that the Linkletter cases "dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to these procedural rules cannot, for retro-activity purposes, be lumped conveniently together in terms of analysis”. Id., 409 US 508.
The Court then stated in Robinson:
"The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. * * * [I]ts practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.” Robinson v Neil, supra, 509.
See, e.g., Linkletter v Walker, supra; Johnson v New Jersey, 384 US 719; 86 S Ct 1772; 16 L Ed 2d 882 (1966). See also People v Kamin, supra.
Thus, when faced with the retroactivity question, we recognize that an analytical distinction has evolved. When considering procedural rules governing trial conduct, the Linkletter-Hampton criteria play a predominant role. However, when non-procedural or substantive rights of a fundamental nature are affected, they are normally to be accorded retrospective application. The Linkletter-Hampton considerations may be addressed, but only in the rare instance will they have determinative effect. Accordingly, the United States Supreme Court has concluded that ordinarily its double jeopardy decisions will be applied retroactively. Robinson v Neil, supra.
The holding in Cooper is substantive in that it expands the Michigan Double Jeopardy Clause to proscribe a dual state prosecution when the interest of the Federal government and the state are not "substantially different”. When Cooper applies, the state has no authority to prosecute a defendant in the first place. Our Court recognized the fundamental nature of this constitutional right when in Cooper we stated:
"In Benton v Maryland [395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969)], the [United States Supreme] Court declared the Fifth Amendment guarantee against double jeopardy to be a fundamental right which was applicable to the states through the due process clause of the Fourteenth Amendment.” People v Cooper, supra, 457.
Although the nature of the right is substantive and fundamental, the factors outlined in Linkletter should not be totally ignored. The United States Supreme Court in Robinson suggested that the distinction that was drawn is not an ironclad one and particularly noted that in certain circumstances the element of prior reliance may outweigh the fundamental nature of the right involved. Robinson v Neil, supra, 509.
We realize that the people have relied upon the prior policy allowing dual prosecution in similar instances. However, it must also be recognized that many of the decisions of the United States Supreme Court in recent years demonstrate a growing limitation upon the concept of dual prosecution originally approved by Bartkus and Abbate. See, e.g., Elkins v United States, 364 US 206; 80 S Ct 1437; 4 L Ed 2d 1669 (1960); Murphy v Water front Comm of New York Harbor, 378 US 52; 84 S Ct 1594; 12 L Ed 2d 678 (1964); Waller v Florida, 397 US 387; 90 S Ct 1184; 25 L Ed 2d 435 (1970); Robinson v Neil, supra. A trend has become apparent toward limiting the impact of decisions like Bartkus while generally extending the application of the Federal Double Jeopardy Clause. See, e.g., North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969); Waller v Florida, supra; Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970); Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977); Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977). Thus, any prior reliance placed upon the dual sovereignty concept must have been recognized as somewhat dubious.
Furthermore, we are also cognizant that dual prosecution is only proscribed by Cooper when the penalties do not vary greatly, the state interest can be adequately vindicated in the Federal court, and there is no significant substantive difference between the statutes. In other words, it must clearly appear that the defendant is in fact and law being twice prosecuted for substantially the same offense. In such instances, reliance upon the questionable concept of dual sovereignty is outweighed by the limited application of the fundamental right against double jeopardy.
Another of the factors outlined in LinkletterHampton requires us to consider the purpose of the Cooper ruling in relation to possible retrospective effect. The reasons expressed in Cooper for eliminating further state prosecution include (1) the avoidance of continued embarrassment, expense and ordeal; (2) relief from anxiety and insecurity; and (3) the possibility that even though innocent the defendant may be found guilty through repeated prosecutions. People v Cooper, supra, 460. It is apparent that retrospective application would not affect the first and second of these considerations as the dual trials with their impact upon the person are now history. However, it is equally clear that retrospective application of the Cooper rule is required to assure the fair distribution of a fundamental right.
Finally, we are not persuaded that retrospective application of Cooper in these cases unacceptably prejudices the administration of justice in this state. Because the Cooper rule applies only when the interests are not significantly different, the possible prejudice mentioned in Robinson of immunizing defendants from serious state penalties following much less severe Federal penalties simply will not occur. Robinson v Neil, supra, 409 US 510. Where the penalties are greatly disparate, where the state interest cannot be adequately vindicated, or where the statutes vary substantively, dual prosecution is permissible to protect state interests. People v Cooper, supra, 459, 461.
We note that the Pennsylvania Supreme Court held Commonwealth v Mills, supra, the case upon which the general approach of People v Cooper was modeled, to have retrospective application in that state. See Commonwealth v Saunders, 456 Pa 406; 322 A2d 102 (1974). We further recognize that these defendants seasonably raised the double jeopardy question prior to their state trial, but were denied relief by the Court of Appeals on the basis of that Court’s opinion in People v Cooper, which was subsequently reversed by this Court.
In conclusion, we find that the purpose embodied in the Cooper decision — the protection of defendants’ right against double jeopardy — is substantive and fundamental. In such case, retrospective effect is ordinarily recognized. Moreover, reliance upon a dubious policy of permitting unlimited dual prosecutions is outweighed by the limited application of this fundamental right against double jeopardy. Retrospective application is necessary to effectuate the purpose of the rule and would not prejudice the administration of justice in this state. Thus, we conclude that retrospective application of Cooper in these cases must be afforded.
In these cases, Gay received a 99-year sentence on his Federal guilty plea conviction. Gerlofs received a less severe sentence, but did so apparently because he was acquitted of the charge of killing a teller while robbing the bank.
We abhor the senseless taking of the life of Connie Marie Adams which occurred while these defendants robbed the Industrial State Bank in Augusta, Michigan. This act was a terrible and reprehensible crime. We have carefully evaluated every aspect of these cases. Yet, the defendants were tried and punished in the same community where the crime occurred, by and before people who lived in that community and under a Federal statute whose provisions and procedures are substantially the same as our state law. The people and the defendants had their day in court when the defendants were prosecuted for the Federal crimes. We are constrained to hold continued prosecution under these circumstances is limited by the Double Jeopardy Clause of our Constitution.
We therefore hold that under People v Cooper, supra, the prosecution of defendants in a Michigan court subsequent to their convictions in Federal court for the same acts places the defendants twice in jeopardy and that the Cooper decision does have retrospective application to these cases.
The orders of the Court of Appeals are affirmed.
Kavanagh, Levin, and Ryan, JJ., concurred with Blair Moody, Jr., J.
Williams, J.
(for reversal). This case concerns whether application of the former jeopardy doctrine enunciated in People v Cooper, 398 Mich 450; 247 NW2d 866 (1976), will permit successive prosecutions under the federal bank-robbery statute, 18 USC 2113(e), and the Michigan first-degree felony-murder statute, MCL 750.316; MSA 28.548, for the death of a bank teller during a robbery. Under the facts of this case, we find that the state and federal interests are "substantially different” and that federal prosecution alone could therefore not satisfy the state’s immediate interests, Cooper, supra, 461; accordingly, we must conclude that dual prosecution was warranted. The instant appeal presents state and federal statutory maximum penalties which are "greatly disparate”. Id., 461. Further, the "differences in [those] statutes are [not] merely jurisdictional [but] are more substantive”; consequently, "some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interests in securing a conviction”. Id., 461. For these reasons, we reverse the Court of Appeals reversal of defendants’ state first-degree felony-murder convictions and remand this matter for their reinstatement. We concur in our Brother Moody’s holding that the double jeopardy rule enunciated in Cooper should be applied retroactively to the instant matter.
I. Facts
A. Introduction
On August 19, 1974, defendants set out on a shocking course which was to conclude that same day in the tragic killing of bank teller Connie Marie Adams.
Armed with two shotguns purchased by defendant Gerlofs, defendants initially sought to rob a restaurant in Kalamazoo, Michigan. Disappointed that the restaurant’s manager was absent, defendants proceeded to the Industrial State Bank and Trust Company located in Augusta, Michigan. As stated by defendant Gerlofs: "We decided that we should rob something and get a lot of money. We agreed on the bank in Augusta.”
While defendant Gay entered the bank armed with a loaded shotgun earlier purchased by his companion, defendant Gerlofs remained in the driver’s seat of their automobile parked in front of the bank. Upon entering, defendant Gay approached Connie Marie Adams’ teller’s window and requested that she "put the money in the bag”. Apparently frightened by defendant Gay’s startling demand, Ms. Adams remained still. Defendant Gay again repeated this request, rapping the shotgun on the glass partition of Ms. Adams’ enclosure. At this point, the shotgun discharged, killing Ms. Adams. Defendant Gay immediately left the bank, taking with him monies secured from another teller’s counter; the total sum removed was approximately $6,000 which defendants later divided. Defendants fled, with defendant Gerlofs driving.
B. The Federal Trial and Appeal
Both defendants were subsequently arrested by FBI officers in Oklahoma on August 21, 1974, arraigned before a federal magistrate in Oklahoma on the following day, and finally returned to Grand Rapids, Michigan, for incarceration on August 24, 1974.
On August 28, 1974, both defendants were returned to Kalamazoo for arraignment in the state district court on first-degree felony-murder charges, MCL 750.316; MSA 28.548. Thereafter, defendants were returned to federal custody.
Commencing on October 14, 1974, defendants were jointly tried in the United States District Court for the Western District of Michigan on charges of bank robbery, 18 USC 2113(a), assault with a dangerous weapon while committing a bank robbery, 18 USC 2113(d), and killing a person while committing a bank robbery, 18 USC 2113(e). These sections provide in pertinent part as follows:
"(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
"Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, * * * with intent to commit in such bank, credit union, or in such savings and loan association, * * * any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
"Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
"(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
"(e) Whoever, in committing any offense defined in this section, * * * kills any person * * * shall be imprisoned not less than ten years * * *.”
Both defendants were found guilty in federal court of bank robbery and assault with a dangerous weapon while committing a bank robbery. For the purposes of sentencing, these two counts were merged and defendant Gay was sentenced to a concurrent life sentence with the possibility of parole after 15 years, 18 USC 4202. These counts were likewise merged as to defendant Gerlofs who was sentenced to ten years imprisonment with "eligibility] for parole at such time as the board of parole may determine”, Í8 USC 4208(a)(2).
With respect to the charge of killing Ms. Adams during the commission of a bank robbery, the federal jury was instructed as follows:
"Count 3 charges that on or about the 19th day of August, 1974, at Augusta, Michigan, Donald Lee Gerlofs and Steven Michael Gay, in committing the robbery charged in Count I, killed Connie Marie Adams, in violation of the laws of the United States.
"The statute in this case provides as follows: 'Whoever, in committing a bank robbery, kills any person, shall be guilty of an offense against the United States.’
"Three elements are required to be proved to establish the offense charged in Count 3 of the indictment:
"First, the act of killing a person.
"Second, doing such act with intent at the time of the killing to willfully take the life of the person, or an intent willfully to act callously and with wanton disregard of the consequences of human life; but there does not necessarily need to be any ill will, spite, or hatred towards the individual killed.
"Third, doing such act in the commission of the offense charged in Count 1.
"With regard to the element of intent, you may consider all the facts and circumstances in the case. If you so find that the defendant Gerlofs had a 12-gauge shotgun, and that he had purchased the shotgun the night before, as well as ammunition; that defendant Gay had the 20-gauge shotgun, and also whether or not each of the participants so armed — that the defendant Gerlofs had a 12-gauge shotgun, and the defendant Gay had a 20-gauge shotgun, and were so armed during the execution of their original intent, if you so find, to rob the bank.
"Under these circumstances, and also considering all the facts and circumstances which you find to be true, you may reach the judgment that Gerlofs’ participation may have been such as to find him guilty as an aider and abettor to the killing.”
Defendant Gerlofs was acquitted of this federal charge. Defendant Gay, however, was convicted of killing Connie Marie Adams during the commission of a bank robbery. For the purposes of sentencing, this count was merged with the robbery and assault counts and defendant Gay was sentenced to serve a concurrent life sentence, again with the possibility of parole after 15 years, 18 USC 4202.
Defendant Gerlofs did not appeal his federal convictions. On appeal to the United States Sixth Circuit Court of Appeals, however, defendant Gay’s convictions were reversed for error in the jury selection process, United States v Gay, 522 F2d 429 (CA 6, 1975). On September 25, 1975, defendant entered a plea of guilty in federal court to the three counts on which he had been originally tried. For the purposes of sentencing, the three counts were merged and defendant was sentenced to concurrent 99 years imprisonment, again with the possibility of parole after 15 years, 18 USC 4202.
C. The State Trial and Appeal
On November 18, 1974, defendants moved to dismiss the pending state first-degree felony-murder charges on the ground that a successive state trial would put defendants twice in jeopardy. Both motions were denied by the trial court on December 30, 1974, and an order granting stay of proceedings pending interlocutory appeal and entered in each case. On July 7, 1975, the Court of Appeals denied defendants’ applications for leave, citing its decision in People v Cooper, 58 Mich App 284; 227 NW2d 319 (1975). This Court denied defendants’ applications for leave to appeal.
Defendants separately proceeded to trial in the state circuit court on the charge of first-degree felony murder, MCL 750.316; MSA 28.548, which the trial court quoted in the first paragraph of its following charge relative to defendant Gay:
"The statute that applies to this case reads as follows: 'All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate, or premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any robbery shall be murder in the first degree [and shall be punished by solitary confinement at hard labor in the state prison for life’, MCL 750.316; MSA 28.548],
"The defendant in this case is charged with a criminal offense which is sometimes commonly referred to as felony murder. The phrase 'felony murder’ applies to all killings which occur during the perpetration or attempted perpetration of the crime of robbery.
"In order to find this defendant guilty of felony murder or in other words first-degree murder, it will be necessary for the prosecution to have proven three elements of the offense to your satisfaction beyond a reasonable doubt. First, it must be proven beyond a reasonable doubt that a robbery or attempted robbery occurred on the date and at the location alleged by the people.
"Secondly, it must be proven beyond a reasonable doubt that Connie Adams was killed during the perpetration or attempted perpetration of the robbery.
"Thirdly, the prosecution must have proven beyond a reasonable doubt that this defendant knowingly participated in the commission of the robbery or attempted robbery.
"To find this defendant guilty of the crime charged, you must be satisfied beyond a reasonable doubt that the defendant did participate in the commission of the robbery and that he did so knowingly. By the word 'knowingly’ is meant that the defendant knew he was committing a robbery. It is not necessary that the defendant have intended or even knew that a person would be killed during the perpetration or attempted perpetration of a robbery. It is not even material if there was an agreement before the robbery that no one would be injured or killed. Likewise, it is also not material if the killing of a person during the robbery was accidental. The only intent of the defendant that need be proven beyond a reasonable doubt is his intent to commit a robbery. If you do not find that the defendant intended to commit a robbery, then you must find the defendant not guilty.
"However, if you find that the people have proven beyond a reasonable doubt that a robbery as charged did occur and that Connie Marie Adams was killed during the perpetration or attempted perpetration of such robbery and that the defendant did knowingly commit the robbery, then you must find the defendant guilty as charged.”
Defendant Gerlofs’ jury was instructed on first-degree felony murder in substantially identical language.
Both defendants were separately convicted of first-degree felony murder and, pursuant to the mandatory terms of that statute, were sentenced to "solitary confinement at hard labor in the state prison for life”.
Both defendants appealed their state conviction to the Court of Appeals on the ground that this Court’s decision in People v Cooper, 398 Mich 450; 247 NW2d 866 (1976), had been violated; defendant Gerlofs additionally filed a motion for peremptory reversal. On June 16, 1977, the Court of Appeals considered defendant Gerlofs’ application and remanded his cause to the trial court for consideration of the double jeopardy issue in light of this Court’s Cooper decision.
On remand, the trial court issued an opinion vacating defendant Gerlofs’ first-degree felony-murder conviction and dismissing the information with prejudice. The trial judge concluded that: the maximum penalties of the federal and state statutes — 18 USC 2113(e) and MCL 750.316 — are not greatly disparate; the federal authorities vindicated Michigan’s interest in securing a conviction; and, the federal and state statutes are merely jurisdictionally rather than substantively different. Attached to the trial court’s opinion was a personal letter written by the judge which elaborated on the reasons for vacating defendant Gerlofs’ conviction.
On December 7, 1977, the Court of Appeals affirmed the trial court’s opinion and granted defendant Gerlofs’ motion for peremptory reversal. Likewise, on January 6, 1978, the Court of Appeals reversed defendant Gay’s first-degree felony-mur der conviction and remanded the cause for dismissal of the information on authority of this Court’s decision in People v Cooper and the trial court’s opinion on remand in People v Gerlofs.
II. Issues
On May 8, 1978, we granted leave to appeal in this matter limited to the following issues: "(1) whether the double jeopardy rule laid down in People v Cooper, 398 Mich 450 (1976), should be applied retroactively; (2) whether the state and federal prosecutions in the instant case served substantially different interests”.
We agree with our Brother Moody that the first issue should be resolved in the affirmative; we will not address that issue further. We respectfully disagree, however, with our colleague’s resolution of issue two. Rather, we hold that, pursuant to the teachings of People v Cooper, the state and federal prosecutions in the instant matter did serve substantially different interests, thereby permitting successive prosecutions for Connie Marie Adams’ death during the commission of defendants’ robbery. The Court of Appeals must therefore be reversed and defendants’ convictions of first-degree felony murder must accordingly be reinstated.
III. People v Cooper: Substantially Different Interests Analysis
In People v Cooper, 398 Mich 450; 247 NW2d 866 (1976), this Court assessed the constitutional propriety of successive state and federal prosecutions for an offense arising from the same criminal transaction. Adopting the Pennsylvania Supreme Court’s approach in Commonwealth v Mills, 447 Pa 163; 286 A2d 638 (1971), to this issue, this Court offered the following general rule for resolving this inquiry:
"* * * Const 1963, art 1, § 15 prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different. Analysis on a case-by-case basis cannot be avoided.” Cooper, 461.
"When state and Federal interests do coincide, prosecution by one sovereign will satisfy the need of the other.” Id., 460.
Elaborating on this substantially different interests guideline with more specific detail, the Court pronounced the following "nonexclusive factors”, People v Formicola, 407 Mich 293, 298; 284 NW2d 334 (1979), to be considered in determining whether a federal prosecution will satisfy this state’s interests:
"Such factors, for prosecutions arising out of the same criminal act, may include [1] whether the maximum penalties of the statutes involved are greatly disparate, [2] whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interests in securing a conviction, and [3] whether the differences in the statutes are merely jurisdictional or are more substantive.” Cooper, supra, 461.
The instant defendants were charged in federal court with bank robbery, assault with a dangerous weapon while committing a bank robbery, and killing Ms. Adams while committing a bank robbery. The state charge involved only first-degree felony murder relating to the death of Ms. Adams. In determining whether defendants’ dual prosecutions violated former jeopardy, therefore, we need only concern ourselves with whether the state first-degree felony-murder statute, MCL 750.316, and the federal robbery-killing statute, 18 USC 2113(e), satisfy substantially different interests as measured by Cooper’s nonexclusive factors. A review of those factors indicates that this inquiry must be resolved in the affirmative.
A. The Maximum Penalties of the Statutes Involved Are Greatly Disparate
The first factor suggested by the Cooper Court for ascertaining whether federal prosecution alone will satisfy this state’s interests is "whether the maximum penalties of the statutes involved are greatly disparate”. Cooper, supra, 461. We conclude that the subject statutes involve greatly disparate maximum penalties inasmuch as: (i) the Michigan first-degree felony-murder statute provides for a mandatory maximum/minimum penalty of life imprisonment without the prospect of parole; (ii) the federal statute more closely resembles the state second-degree murder statute and its penalty provision than it does the Michigan first-degree felony-murder penological scheme; and (iii) the Cooper sentencing scheme is inapposite to this matter since the present case involves different subsections of the federal bank-robbery statute and embraces a felony homicide rather than a non-homicide felony.
The federal count with which both defendants were charged, 18 USC 2113(e), provides for a mandatory minimum penalty of "not less than ten years” imprisonment. Since only a mandatory minimum is expressly prescribed, the federal sentencing court may subject a defendant to a discretionary maximum penalty of any greater term of years, including life imprisonment. Thus, while the minimum sentence for violation of § 2113(e) is mandatory, the maximum sentence is entirely discretionary.
Further, whether the mandatory minimum or a discretionary maximum sentence is imposed, a federal prisoner may enjoy early release on parole pursuant to Chapter 311 of Title 18 of the United States Code. Federal prisoners "may be released on parole after serving one-third of such term or terms or after serving ñfteen years of a life sentence or of a sentence of over forty-five years”. 18 USC 4202. (Emphasis supplied.) Once the § 4202 baseline requirements are fulfilled, parole determinations are lodged solely within the discretion of the Board of Parole. 18 USC 4203. As a general guideline, parole may be granted by that board in its discretion if "there is a reasonable probability that such prisoner will live and remain at liberty without violating the law, and if * * * such release is not incompatible with the welfare of society”. 18 USC 4203(a). Parole release may be sought by the prisoner, 18 USC 4203, by recommendation of various federal authorities, 18 USC 4203, or expressly stipulated in the court’s sentencing judgment, 18 USC 4208. In its discretion, the sentencing court may either (i) provide for parole eligibility when the prisoner has satisfied a minimum term of imprisonment less than one-third of the maximum sentence imposed, or (ii) establish a maximum penalty with the proviso that future parole determinations are ceded to the Parole Board’s discretionary authority. 18 USC 4208(a).
The Michigan first-degree felony-murder statute, MCL 750.316; MSA 28.548, expressly provides that its violation "shall be punished by solitary confinement at hard labor in the state prison for life”. Solitary confinement at hard labor for life, therefore, evidences both the mandatory maximum and mandatory minimum sentence. There exists no room for discretion in the state sentencing court’s imposition of the life imprisonment penalty.
Persons convicted pursuant to the Michigan first-degree felony-murder statute are not eligible for parole release in this state. See MCL 791.234(4); MSA 28.2304(4); MCL 791.233b(n); MSA 28.2303(3)(n); People v Allen, 39 Mich App 483, 502; 197 NW2d 874 (1972) (Levin, J., dissenting), rev’d on other grounds 390 Mich 383; 212 NW2d 21 (1973) (adopting dissent of Levin, J.). Through this statutory preclusion of parole eligibility, it can be logically assumed that the Legislature has deemed the first-degree murder convict "a menace to society or to the public safety”. See MCL 791.233(l)(a); MSA 28.2303(l)(a). Such persons are likewise precluded from receiving probation. MCL 771.1; MSA 28.1131. Only through a discretionary grant of executive clemency may a state prisoner convicted under this statute be released prior to serving the mandatory sentence of life imprisonment. See Const 1963, art 5, § 14. See also MCL 791.244; MSA 28.2314.
Comparing these federal and state statutes, we must conclude that their maximum penalties are "greatly disparate”. While the federal statute, § 2113(e), provides for a mandatory minimum sentence of "not less than ten years” potentially subject to a discretionary maximum of any greater terms of years including life, the Michigan statute, MCL 750.316, posits no discretion in the sentencing court and provides a mandatory maximum/ minimum sentence of "solitary confinement at hard labor * * * for life”. Further, while the federal statutory scheme, 18 USC 4201 et seq., provides for discretionary parole eligibility and release after serving 15 years of a discretionary life sentence, the Michigan Legislature has precluded any eligibility for parole release subsequent to a conviction of first-degree felony murder; although persons convicted under that and other state statutes may petition the Governor for executive clemency, including commutation, our research discloses that such release has been granted only sparingly in the past half-century. Thus, while the federal judiciary may exercise its discre tion and be more lenient in its discretionary sentencing and release determinations subject to the ten-year mandatory minimum, it is not capable of being as harsh as the state judiciary in its mandatory task of imposing unqualified life imprison ment without any prospect of discretionary parole.
This great disparity in maximum penalties is made further significant when one discerns that the potential maximum penalty under the federal robbery-killing statute — not less than ten years imprisonment with a discretionary maximum life sentence — is closely similar to the potential maximum penalty available under Michigan’s second-degree murder statute — "imprisonment in the state prison for life, or any term of years, in the discretion of the court”, MCL 750.317; MSA 28.549, with eligibility for parole after ten years imprisonment, MCL 791.234(4); MSA 28.2304(4). In both the federal robbery-killing and state second-degree murder instances, therefore, a defendant must serve a mandatory minimum sentence of ten years in the event that a discretionary life sentence is imposed. Further, in both instances, a defendant is eligible for parole after serving at least ten years imprisonment. This penological scheme is in marked contrast to the mandatory maximum/minimum penalty of life imprisonment at hard labor without the availability of parole pursuant to a ñrst-degree felony-murder conviction.
Thus, juxtaposed, it can no more be said that the federal and state statutes evidence no great disparity in potential maximum penalties than it can be said that the Michigan first-degree felony-murder and second-degree murder statutes evidence no such disparity. Indeed, at least insofar as sentencing is concerned, it is manifest that the discretion ary federal robbery-killing subsection is as similar to the discretionary state second-degree murder statute as it is significantly dissimilar to the mandatory state first-degree felony-murder statute. This great disparity in the potential maximum penalties imposed for conviction of both second-degree and first-degree felony murder was remarked upon by Levin, J., dissenting, in People v Allen, 39 Mich App 483, 502; 197 NW2d 874 (1972), and subsequently adopted verbatim by this Court, 390 Mich 383, 386; 212 NW2d 21 (1973):
"Second-degree and first-degree [felony] murder are separate offenses. Offenders are subject to signifícantly different penalties: persons convicted of first-degree [felony] murder must be sentenced to life imprisonment and may not be paroled; persons convicted of second-degree murder may be sentenced to life imprisonment— parolable after ten years imprisonment — but, in the discretion of the sentencing judge, they may be sentenced to any term of years, and many are placed on probation. A definitional difference which makes for such a radical difference in the law’s view of an offender’s culpability and in the punishment to which he may be or must be subjected is clearly an essential element.” (Emphasis supplied.)
Finally, we are unpersuaded that the penalties involved in this matter are no more disparate than those considered in Cooper. In fact, we find the disparity of the sentencing scheme involved in Cooper to be incomparably less than that presented in the instant matter.
In Cooper, defendant was charged and acquitted in federal court of having violated the federal bank-robbery statute, 18 USC 2113(a), which carries a discretionary maximum penalty of not more than 20 years imprisonment. Defendant stood convicted in state court of bank robbery and assault with intent to rob being armed. Both state offenses carry a discretionary maximum penalty of life or any term of years; defendant was sentenced to a concurrent term of 5 to 26 years on each count.
Although the Cooper Court did not specifically analyze the comparability of the state and federal potential maximum penalties, even a cursory perusal of those penological schemes reveals that defendant therein was confronted with discretionary sentencing in both the state and federal courts and mandatory eligibility for discretionary parole release in both judicial systems. Unlike Cooper, the instant defendants are confronted with wholly unparallel punishment provisions. Here, defendants are subject to mandatory life imprisonment without any possibility of parole in the state system; in the federal system, however, defendants are merely subject to a mandatory minimum ten-year sentence — subject to a discretionary maximum penalty of life imprisonment — further qualified by mandatory eligibility for discretionary parole. The great disparity in the instant penalties as well as the incomparability of Cooper to the present proceeding is apparent. While the subject statutes in Cooper were harmonious, the instant statutes are patently discordant.
The alleged precedential guidance of Cooper with respect to the instant sentencing inquiry is also invalid since that case involved the comparison of offenses and sentencing schemes not in volved herein. While the Cooper Court was restricted in its sentencing inquiry to a comparison of non-homicide sentencing schemes, i.e., state and federal bank robbery, the instant matter presents the need for comparison of homicide sentencing schemes, i.e., the state statute involving first-degree murder sentencing and the federal statute essentially involving second-degree murder sentencing. Since the instant matter involves a homicide rather than a non-homicide offense and since the Michigan Legislature has chosen to punish first-degree felony murder with mandatory rather than discretionary life imprisonment as is the case in second-degree murder sentencing, we perceive this "radical difference in the law’s view of an offender’s culpability and in the punishment to which he * * * must be subjected” as further persuading this Court to find the penalty provisions of the instant state and federal statutes to be greatly disparate. Allen, supra, 39 Mich App 502. Because, distinguishably from the instant matter, our decision in Cooper was not required to address the comparability of homicide sentencing and its concomitant goals, we would be remiss in our analysis if we felt bound by that decision’s inapposite strictures.
B. The Differences in the Statutes Are Not Merely Jurisdictional But Are More Substantive in Nature
Another "non-exclusive factor” to be considered in ascertaining whether the state and federal interests are "substantially different” is "whether the differences in the statutes are merely jurisdictional or are more substantive”, Cooper, supra, 461. In Justice Moody’s recent opinion in People v Formicola, supra, 300, this factor was elaborated to include whether the statutes "differ as to the type of conduct prohibited, as to the interests sought to be protected, and as to the proofs required to establish the prohibited offense”. Although these specific indicia are not necessarily to be regarded as the sole expression of the general "substantive distinction” inquiry, we nevertheless find that at least two of the three have been fulfilled in this instance.
Although the provisions superficially share the common element that death occur during the perpetration of a robbery, the federal bank-robbery statute augmented by its robbery-killing subsection and the Michigan first-degree felony-murder statute are "substantially different” in terms of their substantive requirements for at least two dispositive reasons. First, the federal statute essentially punishes second-degree murder culpability, whereas the state statute is Michigan’s first-degree murder statute which penalizes that "more atrocious” offense. Second, the federal bank-robbery-killing enactment treats the fact of a killing as an aggravation of the bank-robbery offense, and its concomitant sentence, whereas the exclusive purpose of the state first-degree felony-murder statutory provision is to protect the public against murder whether committed during a personal or a property offense including, but not limited to, robbery.
As to the first reason, our analysis in Part IIIA, supra, of the penological differences between the statutes clearly concluded that the federal law proscribes and punishes culpability for second-degree murder, whereas the Michigan statute patently proscribes and punishes culpability for first-degree murder. This Court has early acknowledged that first-degree murder is a "more atrocious” offense than its second-degree counterpart, People v Potter, 5 Mich 1, 7 (1858); People v Morrin, 31 Mich App 301, 326-327; 187 NW2d 434 (1971), and that the substantive distinction between these offenses reflects a "radical difference in the law’s view of an offender’s culpability and in the punishment to which he may or must be subjected”, People v Allen, supra, 39 Mich App 502. Further exegesis would be redundant.
As to the second reason for our finding that the litigated statutes are substantively dissonant, comparison of their terms demonstrates the disparate interest each has been enacted to serve and protect. On the one hand, it is clear that the federal bank-robbery statute is essentially an enactment to protect the property and security of federal banking institutions with the fact of either personal assault or killing merely augmenting the punishment. On the other hand, it is clear that the state enactment is a first-degree murder statute solely directed toward the protection of human life. The pertinent sections of the federal bank-robbery statute, 18 USC 2113, provide as follows:
"§ 2113. Bank robbery and incidental crimes
"(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
"Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
"Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
"(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; or
"Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $1,000 or imprisoned not more than one year, or both.
"(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value knowing the same to have been taken from a bank, credit union, or a savings and loan association, in violation of subsection (b) of this section shall be subject to the punishment provided by said subsection (b) for the taker.
"(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
"(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years * * *.
"(f) As used in this section the term 'bank’ means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.”
In contrast, the state statute provides:
[MCL 750.316. First-degree murder.]
"Sec. 316. All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.”
Addressing the latter enactment, it is elemental that the Michigan first-degree felony-murder statute has as its principal purpose the protection of human life and the punishment of extreme culpability. This is so whether life is taken during the commission of a premeditated murder or a murder in connection with either an enumerated personal offense, e.g., rape and kidnapping, or an enumerated property offense, e.g., arson, robbery, burglary, larceny and extortion. MCL 750.316; MSA 28.548.
The purpose of the federal bank-robbery statute, 18 USC 2113, including the incidental offense of robbery-killing, § 2113(e), is to "safeguard the stability and integrity of federal banks”. See Way v United States, 268 F2d 785, 786 (CA 10, 1959). Specifically addressing the robbery-killing subsection of this statute, § 2113(e), the United States Eighth Circuit Court of Appeals in United States v Delay, 500 F2d 1360, 1368 (CA 8, 1974), stated: "The crime which Congress has defined and for which it has provided punishment is that of bank robbery and the various sections of the statute [e.g., § 2113(e)] merely define different degrees of that same crime”. Robbery-killing under the federal statute, therefore, is not to be considered a separate offense, but rather as aggravating the penalty for the underlying property offense, i.e., bank robbery. Through its enactment of § 2113, Congress created one offense, bank robbery, which is to receive one punishment, the severity of which is to be determined by the nature of the accompanying aggravating circumstances. See United States v Delay, supra, 1368; United States v Hicks, 524 F2d 1001 (CA 5, 1975).
The principal purposes of the state and federal statutory schemes are clearly different. While the federal statute seeks to safeguard the financial stability and integrity of federal banks alone, the Michigan statute has as its principal purpose the protection of human life by punishing the commission of a premeditated murder or a murder in connection with either an enumerated personal or property offense not limited to robbery alone. Further, unlike the Michigan statute which stands as a separate offense to punish the taking of human life as first-degree murder, the incidental federal provision pertaining to a killing during a bank robbery stands in aggravation of the sentence for the underlying bank robbery and not as a separate offense. Thus, while the state and federal prosecutions admittedly involve the same transaction, each is based on a substantively different offense forwarding a different purpose and protecting a different interest.
Although we do not consider it necessary to our decision, we note in passing that a further substantive distinction existed between these statutes as framed by the state and federal jury instructions reprinted in Part I, B and C, supra. This substantive disparity resides in the recognition that, at the time of defendants’ trials, the federal jury was permitted to infer the mens rea element of killing in assessing guilt of robbery-killing United States v Delay, supra, 1363-1364. The state juries, on the other hand, were not presented with a similar mens rea instruction in assessing guilt for first-degree felony murder; rather, that element was withdrawn from the juries’ contemplation and was imputed or implied as a matter of law. Although we find this substantive difference in proofs illuminating, we do not find this divergence a part of our present analysis, as that matter is pending this Court’s decision in People v Aaron (Docket Nos. 57376, 61140, and 61194).
C. The Federal Jurisdiction Cannot Be Entrusted to Vindicate Fully Michigan’s Interests in Securing a Conviction
As to the final non-exclusive factor of the Cooper analysis, for the reasons stated in Part IIIB, supra, we find that "some reason exists why [the federal] jurisdiction cannot be entrusted to vindicate fully [Michigan’s] interests in securing a conviction”. Cooper, supra, 461. In so ruling, we do not mean to intimate that the federal authorities did not vigorously, competently, and swiftly attempt to secure a robbery-killing conviction; the record reflects a commitment quite to the contrary. Rather, due primarily to the substantive differences of the subject statutes, the federal authorities were impeded in vindicating this state’s different interests in securing a conviction. Indeed, the fact of the matter is that even if the federal authorities had desired to prosecute defendants for first-degree murder, 18 USC 1111(a), as did the state prosecutor, the federal authorities could not have jurisdictionally done so since Ms. Adams neither expired on a federal reservation nor was she a federal officer. 18 USC 1114 et seq.
IV. Conclusion
Under the facts of this case, we hold that the state and federal interests involved are "substantially different” and that federal prosecution alone could therefore not satisfy this state’s immediate interests. Accordingly, we must conclude that dual prosecution was warranted. We reverse the Court of Appeals reversal of defendants’ state, first-degree felony-murder convictions and remand the matter for their reinstatement. We concur in our Brother Moody’s holding that the double jeopardy rule enunciated in Cooper should be applied retroactively in the instant matter.
Coleman, C.J., and Fitzgerald, J., concurred with Williams, J.
These sections provide in pertinent part as follows:
“(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
"Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, * * * with intent to commit in such bank, credit union, or in such savings and loan association, * * * any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
"Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
"(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
"(e) Whoever, in committing any offense defined in this section, * * * kills any person * * * shall be imprisoned not less than ten years, or punished by death * * 18 USC 2113.
This statute provides:
"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” MCL 750.316; MSA 28.548.
Under a 1934 amendment, the Federal bank-robbery statute provided for death. 18 USC 2113(e). That provision was declared unconstitutional for reasons unrelated to the propriety of the death penalty itself. See Pope v United States, 392 US 651; 88 S Ct 2145; 20 L Ed 2d 1317 (1968).
In its opinion on remand relative to defendant Gerlofs, the trial court made the following comment concerning the prosecutor’s argument:
"In Michigan, felony-murder is punished with a mandatory life sentence, and although the Federal statute allows a minimum sentence of ten years, it also provides for a maximum sentence of life in prison. Thus, while the Federal court may be more lenient, it is fully capable of being as harsh.”
What the trial court highlights here is that the secondary difference in minimum sentence is in practical terms offset for purposes of analysis under Cooper by the much more significant fact that the maximum sentences are in essence the same. The Federal court can be as severe in its maximum punishment of life imprisonment as the state in this case.
See, regarding these defendants, 18 USC 4202, repealed and replaced by the non-retrospective amendment embodied in 18 USC 4205.
For distinctions and definitions relative to these functions, see 67A CJS, Pardon and Parole, §§ 3, 4, pp 5-8. This power issues under both the Constitution and statutes of this state. Const 1963, art 5, § 14; MCL 791.244; MSA 28.2314.
Though limited to the years in which such information was available, our research discloses the following statistics regarding actual commutations as opposed to the number of convictions for all first-degree murder convictions for the following years:
Year Number of Convictions Number of Commutations
1964 8 13
1965 14 .16
1966 7 15
1967 30 23
1968 38 16
1969 28 13
1970 41 10
It is thus readily apparent that when the power to commute was exercised during these particular years by the chief executive, the number of commutations actually compared well to the number of convictions.
In comparing the commutable prison term in Michigan with the parolable term in the Federal system, parole is hardly a full release from sentence or a form of leniency. See 67A CJS, Pardon and Parole, § 39, p 54. A paroled prisoner is released from formal incarceration, but remains under careful supervision and subject to immediate revocation of parole for any infraction of parole conditions. DeCosta v United States Dist Court, Dist of Minnesota, 445 F Supp 989, 991 (D Minn, 1978); Roach v Board of Pardons & Paroles, Arkansas, 503 F2d 1367, 1368 (CA 8, 1974); United States v Richardson, 483 F2d 516, 519 (CA 8, 1973). These conditions apply during the balance of the parolee’s sentence. Morrissey v Brewer, 408 US 471, 477; 92 S Ct 2593; 33 L Ed 2d 484 (1972).
Both Federal and state statutes involve an offense and sentence provision concerning homicide. 18 USC 2113(e); MSA 750.316; MSA 28.548. The conviction and sentence to life in prison in both jurisdictions is possible only when the criminal taking of life is proven by the Federal or state prosecutions. Simply because the Federal killing provision is incident to the bank-robbery statute makes it no less a homicide offense and penalty when compared to the offenses present in Cooper.
In Kamin, where this Court held retroactive rules concerning lesser included offense instructions announced in People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), the Court disagreed regarding how the defendant’s interest ought to be characterized. Some of the members of the Court found the defendant’s right to lesser included offense instructions substantive in nature while others found the right a procedural question. People v Kamin, 405 Mich 482, 494-495; 275 NW2d 777 (1979). But see id., 505-507 (Blair Moody, Jr., J., dissenting). Whether Cooper announced a new substantive rule of law is not a serious subject of dispute in this case.
Under other state authorities, an acquittal in Federal court is not distinguished from a conviction in Federal court when dealing with a potential dual prosecution for the same criminal act. See State v Fletcher, 22 Ohio App 2d 83, 85, fn 5; 259 NE2d 146 (1970); Commonwealth v Studebaker, 240 Pa Super 37, 49, fn 24; 362 A2d 336 (1976).
18 USC 4202 was repealed and reenacted with modification by 18 USC 4205 on March 15, 1976. Subsection (a) of 18 USC 4205 now provides for parole eligibility after a prisoner has served 10, rather than 15, years of a life sentence.
If the federal judge had not specifically provided for parole eligibility pursuant to 18 USC 4208(a)(2), defendant Gerlofs would have been eligible for parole under the terms of 18 USC 4202 only after serving one-third of his ten-year sentence. 18 USC 4208(a)(2) was subsequently repealed and reenacted with modification by 18 USC 4205(b)(2) on March 15, 1976.
The fact that defendant Gay’s § 2113(e) conviction and life sentence were reversed on appeal, subsequent to which he pled guilty to that offense and was sentenced to 99 years imprisonment, is irrelevant to this inquiry. This is so because, whether defendant Gay was convicted under or pled guilty to a violation of § 2113(e), the sentencing ramifications and substance of that offense remain the same.
As indicated in footnotes 1 and 2, supra, Chapter 311 of Title 18 of the United States Code, 18 USC 4201 et seq., was repealed and replaced by Pub L 94-233, § 2, March 15, 1976, 90 Stat 219. Section 16(b) of Pub L 94-233 provided that, in all pertinent respects, the act was to become effective 60 days after the date of enactment. It is our understanding that this new chapter is not to be accorded retroactive effect to sentences or parole determinations levied prior to March 15, 1976, under the replaced chapter. See White v Warden, 566 F2d 57 (CA 9, 1977); Daniels v Farkas, 417 F Supp 793 (CD Cal, 1976).
Since both defendants were tried and convicted or pled in the federal court prior to May 15, 1976, it must be assumed that their parole determination and eligibility will be assessed in accordance with the structure and time provisions of the now-repealed chapter. All references in the text are therefore made to the repealed sections.
While the sections referenced and parole system described in the text have largely remained unaltered, one significant modification has occurred. Repealed § 4202 provided for parole eligibility "after serving ñfteen years of a life sentence or of a sentence of over forty-ñve years”; newly enacted § 4205(a), however, provides for parole eligibility “after serving ten years of a life sentence or of a sentence of over thirty years”. Although this modification works no difference as to defendant Gerlofs who received a 10-year sentence, it would have greatly impacted defendant Gay’s parole eligibility (under either his conviction or plea), reducing the minimum parole term from 15 to 10 years.
See footnotes 1 and 4, supra.
Our research discloses the following data relative to the number of commutations awarded since 1938 of all state first-degree murder mandatory life imprisonment sentences as well as the average number of years served prior to commutation:
Year Number of Commutations Average Number of Years Served Prior to Commutations
1938 4 13
1939 1 11
1940 3 21
1941 0
1942 3 21
1943 0
1944 2 1945 3 27 19
1946 5 21.2
1947 1 32
1948 11 25
1949 10 23
1950 12 24
1951 7 25
1952 10 1953 5 23 30
1954 7 23
1955 11 25
1956 6 25
1957 11 27
1958 15 27
1959 24 27
1960 25 30
1961 24 28
1962 52 26
1963 24 29
1964 13 26
1965 16 19
1966 15 24
1967 23 21
1968 16 24
1969 13 27
1970 10 24
1971 5 22
1972 8 21
1973 21 27
1974 9 21
1975 3 29
1976 2 20
1977 1 21
1978 0
1979 4 18.5
As discussed in footnotes 1 and 4, supra, federal parole eligibility for life imprisonment has been reduced from 15 to 10 years. Had defendant Gay been subject to this reduced eligibility provision, it is clear that the Michigan second-degree murder statute and the subject federal statute would have been identical in both the maximum penalty as well as release aspects.
Defendant’s state conviction of attempted murder, which carries a discretionary maximum penalty of life imprisonment or any term of years, was earlier reversed on other grounds by our Court of Appeals; since the prosecution did not cross-appeal that reversal, the Court was incapable of viewing that charge vis-á-vis the former jeopardy doctrine. In a separate concurrence, Justice Coleman intimated that, had the attempted murder prosecution been presented for review, that state prosecution "may well have involved interests substantially different from those addressed by the Federal statute”. Cooper, supra, 465-466.
We find the instant homicide prosecutions to be distinguishable from the robbery and assault prosecutions involved in Cooper, where we stated that "[t]he laws of both jurisdictions [18 USC 2113(a) (robbery) and MCL 750.531; MSA 28.799 (robbery), MCL 750.89; MSA 28.284 (assault)] seek to insure the safety of individuals and the protection of private property”. Cooper, supra, 462.
The statutes under consideration in the instant matter solely relate to the death of a person during the commission of a robbery; more than safety and the protection of property are therefore at stake in the instant statutory analysis.
We also note that even if defendants could have been prosecuted under the federal first-degree murder statute, 18 USC 1111(a), that statute likewise requires, at minimum, inferential proof of mens rea. | [
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Kavanagh, J.
This is an appeal from a Worker’s Compensation Appeal Board decision ordering the Second Injury Fund to pay plaintiff differential benefits commencing 4-1/2 years prior to the date she filed her application for benefits. The Second Injury Fund argues that the two-year-back rule provision in MCL 412.15; MSA 17.165, currently MCL 418.381(2); MSA 17.237(381X2), precludes the retroactive award of benefits for any period which antedates the filing of plaintiff’s application by two years.
We hold that the two-year-back rule is inapplicable to this case, and affirm.
I
Plaintiff Marjorie Brecht suffered two injuries to her back, neck and shoulders while in the employment of Save-Way Food Center: the first in 1965, the second in 1967. For the 1965 injury, her employer voluntarily paid plaintiff total disability benefits for 500 weeks. These benefits terminated October 31, 1974.
On December 19, 1974, plaintiff filed a petition seeking total and permanent disability benefits from both her employer and the Second Injury Fund, alleging that she had lost the industrial use of- her arms. MCL 412.10(b)(7); MSA 17.160(b)(7). On September 4, 1975, the hearing referee determined that plaintiff had been without the industrial use of her arms since April 28, 1970. He based this finding upon the 1967 injury. The referee ordered the Second Injury Fund to pay differential benefits as of April 28, 1970, finding the two-year-back rule applicable only to the liability of the employer’s insurer, the Michigan State Accident Fund.
The Worker’s Compensation Appeal Board affirmed the referee’s determination of plaintiffs permanent and total disability. As to the applicability of the two-year-back rule to the liability of the Second Injury Fund, the board held:
"The referee further properly ruled that the two-year-back rule (formerly Part II, § 15), given a 1967 date of injury, is not a bar to supplement [sic] benefits due from the Second Injury Fund for total and permanent disability (Rice v Michigan Sugar Co, 1977 WCABO 97). The referee’s award of benefits is affirmed as entered.” 1978 WCABO 370.
The Court of Appeals denied the Second Injury Fund’s application for leave to appeal. This Court granted leave to appeal, limited to the issue whether the appeal board erred in failing to limit the Second Injury Fund’s liability in accordance with the two-year-back rule, given a date of injury before July 1,1968.
We hold that it did not.
II
At the time of plaintiff’s injury, the two-year-back rule provided:
"Whenever weekly payments are due an injured employee under this act, such payments shall not be made for any period of time earlier than 2 years immediately preceding the date on which the employee filed notice of application for hearing and adjustment of claim with the department.” MCL 412.15; MSA 17.165.
It is similar to the one-year-back rule (MCL 418.833[1]; MSA 17.237[833][1]) in placing a limitation on the retroactive award of benefits, but it applies only to injuries for which no compensation has previously been paid.
Also at the time of plaintiff’s injury the statute provided for differential benefits as follows:
"Any permanently and totally disabled person as defined in this act who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of any amendatory act, by which his disability is defined as permanent and total disability or by which the weekly benefit for permanent and total disability is increased, receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now or shall hereafter be entitled to receive from his employer under the provisions of this act as the same was in effect at the time of bis injury and the amount now provided for his permanent and total disability by this or any other amendatory act with appropriate application of the provisions of paragraphs (b), (c), (d) and (e) of this section since the date of injury. Payments from this second injury fund shall continue after the period for which any such person is otherwise entitled to compensation under this act for the duration of such permanent and total disability according to the full rate provided in the schedule of benefits.” MCL 412.9; MSA 17.159 (emphasis supplied).
Claimant argues that a retroactive award of differential benefits is not subject to the two-year-back rule because the rule contemplates the filing of an application and here differential benefits were due without application.
The fund counters that the right to differential benefits is a "piggy-back” right and is contingent upon an entitlement to receive total and permanent disability benefits from the employer. Since without voluntary payment an application is necessary to determine employer liability, the fund argues that such application is also necessary to secure an award of differential benefits.
Although the logic of the fund is impeccable, it effectively writes the phrase "without application” out of the statute before the Legislature chose to do so in 1968. See 1968 PA 227, now MCL 418.521(2); MSA 17.237(521X2).
We are satisfied that the WCAB has adopted a reasonable construction of the statute which gives effect to the phrase and its subsequent deletion. A retroactive determination of total and permanent disability entitles a worker to differential benefits from the Second Injury Fund without regard to the two-year-back rule if the injury occurred prior to July 1, 1968, even though the base benefits are limited by the rule. See Rice v Michigan Sugar Co, 1977 WCABO 97; Harpe v Kaydon Engineering Corp, 1977 WCABO 544.
We do not agree with the fund that its period of payment must be identical to that of the employer. Once a determination of employer liability has been made, even retroactively, the fund’s obligations are independent. White v Weinberger Builders, Inc, 397 Mich 23, 33; 242 NW2d 427 (1976). The fund’s period of payment may extend beyond the employer’s if the employer’s liability is limited by a provision not applicable to the fund.
Affirmed. No costs.
Williams, Levin, and Blair Moody, Jr., JJ., concurred with Kavanagh, J.
Coleman, C.J.
Plaintiff suffered injuries in the course of her employment in April, 1965, and on September 4, 1967. Plaintiff filed a petition for a hearing on September 12, 1967. On January 2, 1968, that petition was withdrawn at the request of plaintiffs attorney because the employer agreed to pay benefits voluntarily based on an April 1, 1965, date of injury. On December 19, 1974, following termination of these voluntary payments, plaintiff filed a petition for a hearing seeking benefits for a total and permanent disability. The hearing referee found plaintiff totally and permanently disabled as of April 28, 1970, and ordered the Second Injury Fund to pay differential benefits as of that date based on the 1967 injury. The Workers’ Compensation Appeal Board affirmed.
On appeal, defendant claims that MCL 412.15; MSA 17.165 limited the liability of the fund to benefits for the period after December 19, 1972. Plaintiff contends that an award of differential benefits pursuant to MCL 412.9; MSA 17.159 is not subject to the limitations of MCL 412.15; MSA 17.165. Furthermore, plaintiff claims that MCL 412.15; MSA 17.165 applies only to employers and not to the Second Injury Fund.
Plaintiff’s argument that MCL 412.15; MSA 17.165 is a limitation of an employer’s liability but not the Second Injury Fund’s liability is unpersuasive. Although the scope of the fund’s obligation is not identical to an employer’s, see White v Weinberger Builders, Inc, 397 Mich 23, 32-33; 242 NW2d 427 (1976), they are both governed by the limitations established in the act. MCL 412.15; MSA 17.165 provides that "[wjhenever weekly payments are due * * * such payments shall not be made for any period of time earlier than 2 years * * * preceding the date” of the application. This provision is not limited to payments due from an employer. It also applies to weekly payments from the fund, see Rice v Michigan Sugar Co, 1977 WCABO 97, aff’d 83 Mich App 508; 269 NW2d 202 (1978).
MCL 412.9; MSA 17.159 authorizes the payment of differential benefits, without application, to persons "entitled to receive payments of workmen’s compensation”. In White, we stated:
"In the absence of a prior determination of employer liability, a redemption agreement between a claimant and an employer or insurance carrier does not entitle a claimant to benefits and constitutes neither an admission nor an adjudication of employer liability.” White, supra, 34.
Similarly, the payment of voluntary benefits without a determination of an employer’s liability does not entitle a claimant to the payment of benefits. In this case an application for a hearing was necessary to determine the employer’s liability and entitle the claimant to benefits. The application was filed on December 19, 1974. MCL 412.15; MSA 17.165 provides that "payments shall not be made for any period of time earlier than 2 years immediately preceding” this date. Under this provision, no payments shall be made for any period before December 19, 1972.
This construction of MCL 412.15; MSA 17.165 does not write the phrase "without application” out of the statute. A person injured before July 1, 1968, who is entitled to receive payments under the act, and who is totally and permanently disabled, will continue to receive differential benefits and any increases in those benefits without the necessity of further application.
Reversed and remanded.
Fitzgerald and Ryan, JJ., concurred with Coleman, C.J.
This case comes within the purview of the two-year-back rule rather than the one-year-back rule because two separate injuries are involved. Previous benefits were awarded for the 1965 injury; the hearing referee here awarded permanent and total disability benefits for the 1967 injury. This award was not "further compensation” for the 1965 injury, within the meaning of the one-year-back rule. Compare Martin v Somberg-Berlin Metals Co, ante, 407 Mich 737; 288 NW2d 574 (1980).
MCL 412.15; MSA 17.165 provided:
"Whenever weekly payments are due an injured employee under this act, such payments shall not be made for any period of time earlier than 2 years immediately preceding the date on which the employee filed notice of application for hearing and adjustment of claim with the department.”
The present statutory provision is MCL 418.381(2); MSA 17.237(381X2).
MCL 412.9; MSA 17.159 provided in pertinent part:
"Any permanently and totally disabled person as defined in this act who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of any amendatory act, by which his disability is defined as permanent and total disability or by which the weekly benefit for permanent and total disability is increased, receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now or shall hereafter be entitled to receive from his employer under the provisions of this act as the same was in effect at the time of his injury and the amount now provided for his permanent and total disability by this or any other amendatory act with appropriate application of the provisions of paragraphs (b), (c), (d) and (e) of this section since the date of injury.” The present statutory provision is MCL 418.521; MSA 17.237(521). | [
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Sharpe, J.
This is an action brought by Athos Pappas'and Maye I. Pappas, the American Equitable Assurance Company of New York, Millers National Insurance Company of Illinois, Monarch Fire Insurance Company of Ohio, Northwestern National Insurance Company of Wisconsin, and Ohio Farmers Insurance Company, assignees of Maye I. Pappas,, as plaintiffs, against DeWitt C. Parsons, Floyd W. Parsons and Harold Plolmberg, individually and as a copartnership doing business as Parsons & Holmberg Heating & Air Conditioning Company, as defendants, to recover damages caused by a fire to property owned by Maye I. Pappas.
On August 10, 1943, plaintiff Maye I. Pappas was the owner of a two-story frame store building located on the shore of Graham lake. The store building was 30 by 60 feet. The lower floor of the building was occupied by Athos Pappas in conducting a grocery store and meat market. The upstairs was divided into 4 three-room furnished apartments with a hall running down the center.
A few days prior to August 10, 1943, Maye I. Pappas entered into a contract with Parsons & Holmberg Pleating & Air Conditioning Company to insulate the front or west end of the building and the second floor ceiling with granulated rock wool. On August 9, 1943, defendants moved their insulat ing equipment, consisting of an enclosed trailer with a one-cylinder gasoline engine, shredder and blower, together with hose and nozzle, onto plaintiff’s property. The hose is about 3 inches in diameter and made of fabric, rubber, and spiral wire. It attaches to the blower and runs from there to the place of insulation. It is made in 25-foot sections and blows insulation approximately three feet. There is a flexible metal nozzle some 6 or 7 feet in length which is fitted to the end of the hose. The building to be insulated had a flat roof running from west to east. It was a built-up roof consisting, of roofing paper and tar composition. The roof at the west or front end of the building was about 3% to 4 feet above the ceiling of the second floor and ran back to the east end of the building where the space between the roof.and ceiling of the second floor was about 4 inches.
On August 9th, defendant Holmberg and an employee who operates the blower proceeded to cut two 'ventilator holes about 12 by 18 inches in the front half of the building, one on the north side and one .on the south side of the building. They then insulated the west wall and'the front half of the ceiling with about 4 inches of rock wool.
On August 10th, defendant Holmberg and two employees began work about 9 a.m. One employee crawled into the attic through a hatch in the roof and proceeded to blow the insulation to a distance of about 10 or 11 feet from the rear or east end of the building. They then moved their trailer to the rear of the building and set up a ladder, to the north of the rear door, .removed the finishing boards between each rafter and proceeded to insulate the rear 10 or 11 feet by inserting the nozzle on the end of the hose into openings made for such purpose. The work was finished about 4:30 p.m. They re turned to Battle Creek and arrived there about 5 p.m. About 5:3Q p.m., a Mrs. Etha A. Smith, who lives in one of the cottages in the rear of the store building, smelled smoke and ran into the store and informed Mr. Pappas.. He came out the rear door and saw smoke coming from the roof. The Battle Creek fire department was called as well as the Battle Creek township fire department. Both fire departments responded to the call. The upper story of the building- was practically burned down. After the fire, the building was rebuilt at a cost of $5;443.46. The loss' was pro-rated and paid by the insurance companies carrying the risk which companies took assignments from plaintiff Mayé I. Pappas and were subrogated to her rights for damages.
Maye I. Pappas, .individually, claims damages for loss of .trees destroyed by fire, for loss of furnishings and equipment, and loss of rents from apartments while rebuilding. Plaintiff Athos Pappas claims damages to his store fixtures, stock of goods and loss .of an office desk. It is the claim of plaintiffs that the fire could not have started by any means other than those furnished by the defendants. This claim is based upon evidence that the attic was clean prior to the insulation; that no live electric wires were located anywhere in the attic space of the building; that the fire could not have started in the second floor of the building as there was no evidence of flame or smoke in that part of the building; and that the testimony established that two of defendants’ employees were working in the east end of the building not more than 50 minutes before the fire was discovered; that they were the last persons at or near that particular place who could have had an opportunity to cause the fire; that the nozzle was so hot that it could not be held without wrapping it in various materials; that a shower of sparks was seen to blow back out of the hole in which the nozzle was inserted; and that these sparks were seen coming out of the building less than one hour from the time the fire was discovered.
Defendants introduced testimony to the effect that there was a fire burning in the coal hot water heater at the rear of the building; that smoke was seen coming from the chimney to which the coal heater was connected; that a tenant family returned to their second floor apartment for a brief time during the afternoon of the fire; that the gasoline motor which powered the blowing rig was so isolated from the rest of the machinery that it could not have contributed to the cause of the fire; that during the afternoon of the fire, defendants were using granulated rock wool as insulation; that an analytical chemist analyzed a sample of the pellet type of rock wool used on 'the job and found that there was no cotton or wool in it; and that it consisted of mineral fibres made of blast furnace slag or limestone or silicate; that in passing through the hose it would not create friction sparks; that the material could not become heated to such an extent as to start a fire in wood or other materials except very combustible material, such as gas or vapor from oils.
The cause was tried without the aid of a jury. The trial court denied any recovery to plaintiffs and made the following finding of facts:
“The evidence clearly establishes that the material they were using to insulate was rock wool and whether it was granulated or loose fibre type, was not combustible and that the passage of-it through the hose would merely create static sparks, if any at all. "While the passage of it through the hose might tend to develop a little friction that would cause the tube to become heated, however, the passage of the air through the hose would tend to cool the same and the friction would not heat the hose or nozzle to such an extent as to make it too hot to hold, or so hot as to start a fire. The evidence further shows that static, or even friction sparks could not. have caused a fire in the rock wool and could not have started fire on the wood.
“The fire did not start in that section of the roof at the point where the men were last working, but at a point some 15 feet from the east end of the building and about 1 to 3 feet out from the north side, where they had been working before 10 o’clock that morning. This point was west of the part that they were last filling with rock wool and to the west of the overlay or timber which blocked the flow of rock wool from that end. ’ ’
In order to recover plaintiffs are required to allege and prove actionable negligence on the part of defendants and that such negligence was the proximate cause of the fire. Schultz v. Sollitt Construction Co., 296 Mich. 125. Negligence cannot be presumed. See Perry v. Railroad Co., 108 Mich. 130.
In Durfey v. Milligan, 265 Mich. 97, we said:
“While the accident alone is not evidence of negligence, the accident itself, together with the surrounding circumstances and legitimate inferences, may establish negligence.” '
Measured by the foregoing principles of law, we are of the opinion* that the negligence of defendants becomes an issue of fact. The trial court made a finding of fact to the effect that plaintiffs had not established negligence upon the part of the defendants. We do not reverse unless the evidence 'clearly preponderates in the opposite direction. See Leonard v. Hey, 269 Mich. 491 (37 N. C. C. A. 111),
In our opinion the evidence does not preponderate in favor of plaintiffs. The judgment is affirmed, with costs to defendants. «
Carr, C. J., and Butzel, Bushnell, Boyles, Reid, and Dethmers, JJ., concurred. North, J., did not sit. | [
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Btjshnell, J.'
This is an appeal ' by plaintiff Marian L. Hornbeck from a decree of divorce which was granted to her. The parties were married on November 10, 1942, and have two minor children, Charlene May and Ralph James. At the time plaintiff’s bill of complaint was filed the daughter wa« two years old and the son five weeks old. Plaintiff sought custody of both children. Defendant Clayton M. Hornbeck filed an answer denying that his wife was entitled to a divorce.
After taking testimony the trial judge stated:
“A very peculiar situation exists in this case in that the evidence indicates that the plaintiff has taken good care of the younger child of the parties and there is considerable evidence that she didn’t take good care of the older child.
“I am impressed with the' testimony of Mr. Herman, who is a disinterested witness on that basis. There will be a decree of divorce on the bill of complaint. I find she is a fit person to have the custody of the youngest child, and the custody of that child will be awarded to her and I find he is fit person to have the custody of the older child, and the custody of the older child will be awarded to him. ’ ’
Prom the colloquy that ensued it appears that plaintiff was not satisfied with the court’s disposition of the children, and no decree was then entered. On December 17, 1945, the parties were again in court, and the record indicates that plaintiff’s counsel had requested the privilege of filing a brief on the question of the custody of the older child. The court stated that the brief had been considered and that a decree might be entered as had been indicated in its opinion.
Objections to the proposed decree were filed by plaintiff on December 31, 1945, in which her counsel advised the court that the plaintiff did not desire a decree of divorce.
The next matter in the record is a transcript of a discussion'at a session of the court on January 12, 1946. The trial judge said that the matter of custody of the children had been reopened for the reason that no special prosecuting attorney had been appointed to represent them at the time the case was heard.. Defendant’s counsel was the prosecuting attorney of the county and, presumably, because of this situation the court appointed a special prosecutor. After an investigation he filed a report in which he concurred with the court’s view as to custody.- At this session plaintiff’s counsel vigorously objected to the reopening of the. case and the appointment of the special prosecutor, on the ground that testimony had already been taken. This objection was overruled; and while no formal motion to dismiss was renewed at the time it appears from the colloquy that counsel presented an order dismissing the cause, which was not signed. Plaintiff on March 8, 1946, filed a formal motion to dismiss. This was supported by plaintiff’s sworn statement, which reads:
“It is my desire that this case be dismissed for the reason that I do not desire to have a decree of divorce at this time.”
The decree of divorce was entered on March 13, 1946. Following* the entry of the decree there appears in the record a report of the friend of the court filed on April 11, 1946, relating to the investigations he made in November and December of 1945.
We see no reason to disturb the determination of the court with respect to the custody of the children. While ordinarily a mother would be entitled to the custody of minor children under the age of 12 years, this is not a hard and fast rule. Mott v. Mott, 251 Mich. 576; Riede v. Riede, 300 Mich. 300. As re-_ peatedly said, the controlling question is the best interests of the children. The court is open at all times to consider any representations that may be made as to their welfare.
In Cole v. Cole, 193 Mich. 655, and Sweeney v. Sweeney, 196 Mich. 240, 246, the Court discussed technical irregularities in the matter of service of process upon the prosecuting attorney in divorce cases where there are minor children. In the Sweeney Case the Court .said:
“We are impressed that this controversy should not be finally disposed of until the minor children are properly represented by the prosecuting attorney appearing in their behalf under the statute which authorizes such action and requires service of process upon the prosecuting attorney in divorce cases where there are minor children. Whether his appearance was entered in this case in its inception wé are not advised. It is not shown that a copy of this petition was served upon him. The purpose and spirit of the statute is that, in the public interest and for the welfare of the children, the court shall have the independent aid of disinterested counsel, impartial between the contending parties, to investigate the facts and present to the court the true situation, so far as the best interests of the children are concerned. ’ ’
The requirements of the statute have been satisfied in the instant case and we will not disturb the decree because of the claimed irregularities.
It is apparent from a reading of the record that the plaintiff desired a divorce until she became aware that she could not have the custody of both children. She then changed her mind and sought to have her bill dismissed. This practice cannot be approved, particularly in the light of 3 Comp. Laws 1929, § 14335 (Stat. Ann. § 27.1081), and Court Rule No. 38 (1945), which read respectively:
“That in any civil action hereafter commenced in this State, whenever the defendant shall have entered upon his defense to the action in open court, the plaintiff shall not be allowed to discontinue his suit or submit to a nonsuit without the consent of the defendant.” (3 Comp. Laws 1929, § 14335.)
“The plaintiff may at any time, before answer filed, and on the payment of costs, discontinue his suit by notice of discontinuance filed in the cause and giving notice thereof to the defendant or his attorney. Thereafter he may' discontinue, on the same terms, only (1) upon filing a stipulation to that effect signed by the defendant, or his attorney, or (2) on the order of the court or judge made on special motion in which the grounds for such discontinuance shall be set forth and which shall be supported by affidavit. After a recoupment, set-off or cross bill has been pleaded by a defendant no discontinuance against such defendant may be had except by consent.” (Court Rule No. 38, § 1 [1945].)
Authorities which throw light on this subject are Pear v. Graham, 258 Mich. 161, Goodspeed v. Goodspeed, 300 Mich. 371; Ratcliffe v. Ratcliffe, 308 Mich. 488. The decree is affirmed, without costs.
Carr, Boyles, and Reid, JJ., concurred with Bushnell, J.
Sharpe, J.
I am not in accord with the opinion of Mr. Justice Bushnell insofar as it relates to the custody of the children for reasons hereinafter stated.
The. parties were married November 10, 1942, and later moved to the. home of defendant’s mother on a farm near Edmore, Michigan. As a result of the marriage two children were born, Charlene M. Horn-beck born May 1, 1943, and Ralph J. Iíórnbeck born in April, 1945. Defendant is 14 years older than plaintiff. He lives on a farm with his mother and a younger brother. After the separation,, plaintiff went to live with her mother and father who also live on a farm near Lakeview, Michigan. Living at this home is a brother of plaintiff.
The record clearly sustains the trial judge in the granting of a decree of divorce to plaintiff by reason of the several acts of cruelty committed hy defendant. The report of the friend of the court shows that the homes of plaintiff’s parents and defendant’s mother, insofar- as the physical surroundings are concerned, are each suitable for children to live in.
The substance of the trial court’s opinion was'that plaintiff is a proper person to have the care and custody of the younger child; and that defendant is a fit person to have the care and custody of the older child, despite the fact that defendant’s treatment of plaintiff was such that she is entitled to & decree of divorce.
Section 12852, 3 Comp. Laws 1929 (Stat. Ann. §25.311), provides in part:
“That in case of the sepafation of husband and wife haying minor children, the mother of said children shall be entitled to the care and custody of all Such children under the age of twelve years, and the father of such children shall be entitled to,the care and custody of all such children of the age of twelve years or over. ’ ’
In Liebert v. Derse, 309 Mich. 495, we said:
“We recognize the long-established rule that the best interest of the child is of paramount importance, Martin v. Benzie Circuit Judge, 200 Mich. 549; In re Gould, 174 Mich. 663, and that it is our judicial duty to safeguard his welfare and care, Bird v. Bird, 308 Mich. 230. However, we never have interpreted such rule so as' to deprive a parent of the custody of his or her child, unless it was shown that the parent was an unsuitable person to have such custody. ’ ’
In Coyle v. Coyle, 221 Mich. 76, we said:
“A girl of such tender years (about 7) should have the cáre and love of her own mother, and if she is a suitable mother the statute gives her this right.”
See, also, Burkhardt v. Burkhardt, 286 Mich. 526.
The complaint made against plaintiff is that shé neglected the care of the older child. The principal complaint is that plaintiff failed to keep the baby’s bed and personal clothing dry, failed to give the baby proper baths, and failed to give the baby its proper formula for feeding. There is some testimony to support these claims, but we must have in mind that a child of tender years is liable to have its bed and clothing wet at unexpected moments. It is not at all improbable that the child could have had more personal attention from her mother if plaintiff had not been required to do the barnyard chores and run the’ tractor while she was carrying her second baby. The result of the decree is a separation of two young children who should be raised together under the guidance of the mother and with the love and affection that only a mother can give.
In coming to these conclusions, I have in mind that the paternal grandmother is a woman of advanced years; that plaintiff’s health has greatly improved since she separated from her husband; and that plaintiff has a good home in which to rear the children.
A decree should be. entered in the Supreme Court giving plaintiff custody of both children and the cause remanded for a determination of the amount that defendant should pay for the support and maintenance of both children. Plaintiff should recover costs.
Butjzel, C. J., and North, and Dethmer's, JJ., concurred with- Sharpe, J.
See 3 Oomp. Laws 1929, § 12764, as amended by Act No. 44, Pub. Acts 1931 (Oomp. Laws Supp. 1940, § 12764, Stat. Ann. § 25.121). — Repobteb. | [
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Adams, J.
Magnus Larson committed suicide one day before his case was decided by the workmen’s compensation appeal board. His claim arose on September 28, 1959, and notice was given to the employer on September 19, 1960. It was decided by the referee on November 6,1962. Review demanded by the defendants was completed by the board of appeals on August 18, 1964. Throughout this time Larson’s claim was increasing week by week. When he gave notice, his claim amounted to $1,673.55. When affirmed by the appeal board, it amounted to $8,396.13.
It is maintained that no matter how long the delay in deciding Larson’s claim, no matter how many weeks of benefits had accrued before decision by the appeal board, all that was necessary to wipe out his rights was for him to die. Had he lived two more days, there is no question but that his estate could assert and collect what was due him.-
1.
Defendants assert that benefits under the workmen’s compensation law are personal rights belonging to the injured employee and his dependents and since the workmen’s compensation act did not contain a provision for the prosecution of a claim by an administrator, Larson’s administrator may not prosecute one.
In Stetu v. Ford Motor Co., 277 Mich 468, Houg v. Ford Motor Co., 288 Mich 478, Brandner v. Myers Funeral Home, 330 Mich 392, and Adams v. Sebewaing Brewing Company, 347 Mich 265, the rule was laid down that where an award of compensation has been made prior to the employee’s death an administrator may collect upon the claim. The Court, in Houg, said (pp 481, 482):
“Plaintiff’s death terminated defendant’s liability for the remainder of such payments which he would have received in case he had lived (CL 1929, § 8428 [Stat Ann § 17.162]), but did not discharge defendant’s liability for the payments which had accrued under the order of the department of labor and industry prior to his death. Defendant remained liable therefor and the amounts which had accrued in plaintiff’s lifetime are collectible by his personal representative. Stetu v. Ford Motor Co., 277 Mich 468.” (Emphasis supplied.)
It will be seen from the above that the main reason the administrator is given the right to pursue the claim is because “the payments * * * bad accrued.” No authorization of such right in the act was deemed necessary. If an administrator may pursue a claim which has accrued under an order of the workmen’s compensation commission, why should he not be allowed to pursue an identical claim upon death of the claimant before a final order has been entered? The authority of an administrator not being derived from the act, it must be concluded it is the same in one case as in the other.
2.
It is asserted there can be no final order until the decision of the appeal board because this Court has held that a hearing before the appeal board is de novo. Fawley v. Doehler-Jarvis Division of National Lead Company, 342 Mich 100.
The appeal board, in its opinion in this present case, stated:
“In these days when the case load of the appeal board and the hearing referees are numbered in the thousands and with the time necessary for the determination of right under the procedure section of the statute being measured in years, it only adds insult to injury to tell the estate’s administrator that he has no right to proceed except in those cases where final awards have been entered by the tribunal established for resolving the disputes which arose. An unscrupulous employer knowing the time consumed in determining the rights of the parties, could well decide that it is cheaper to let the injured die than to pay him or attempt to save his life when there are no dependents within the meaning of the compensation statute.”
The question is not whether there can be no final order until decision by the appeal board, but whether there need be such a final order.
In Schlickenmayer v. City of Highland Park (1931), 253 Mich 265, this Court held that a widow’s claim for death benefits arising out of her husband’s death in the course of his employment was a new and original liability of the employer and her right to compensation was not derivative from the husband’s rights against his employer for the injury causing death. While not necessary to decision in that case, the Court said (p 267):
“It [the widow’s right to compensation] did not pass to plaintiff from him upon his death, — it was not part of his estate. It did not come to plaintiff as an heir. * * * Upon the death of decedent his right to be awarded compensation ceased.” (Bracketed material added.)
In Munson v. Christie (1935), 270 Mich 94, which involved a claim by the widow and administratrix for an award for medical services that should have been paid by the employer during the lifetime of the employee, the Court granted the benefits but by way of dictum stated (pp 100, 101):
“It is settled that the rights and benefits afforded the employee by this act do not survive to his heirs as such. And we can agree' with apellante that the act contains no provision for prosecution of a proceeding before the commission by a representative of the deceased or of his estate, and therefore such representative cannot petition for an award-.”
In Stone v. Smith (1936), 275 Mich 344, the question of abatement of weekly benefits was directly considered. An award of compensation for total disability had been made by the deputy commissioner to the employee and was pending on appeal when the employée died. Notice of death was given by Mildred G. Stone in which it was recited that she was the dependent widow and special-administratrix, of the estate of George E. Stone, the deceased'employee, and that death resulted from the injury. The notice requested confirmation of the award of compensation by the deputy commissioner to Stone and that the same be allowed at the rate of $18 a week for the period from September 23, 1933, to the date of death, November 9, 1934. The department entered an -order dismissing the proceeding as to George E. Stone but treated the notice as also being an application for adjustment of claim filed in behalf of dependents which it referred to a deputy commissioner for the taking of additional testimony and the determination of rights. This Court upheld the order of the department, pointing out that if the employer had liability it would only be for death benefits to dependents un der the act which makes such compensation payable from the date of the injury, and that there could not be two recoveries for the same injury covering the same time — one to the injured employee and the other to his dependents. This Court held (p 351):
“His death amounted to an abatement of that proceeding [the employee’s claim]. After the death of the injured employee, the employer is liable, if at all, under the provisions of CL 1929, § 8421 [part 2, § 5] and the other sections of the statute therein referred to [compensation for death benefits to dependents].” (Bracketed material added.)
The holding of Stone was followed in Holtz v. B. F. Keith Detroit Corp. (1936), 276 Mich 72. It was further clarified in Mooney v. Copper Range R. Company, 318 Mich 120, where the Court said (p 125):
“In the case at bar the claim for compensation. was abated only so far as the injured employee was concerned. The proceeding was still pending to determine the rights of the dependent. The purpose in each ease was to determine whether the injured employee had suffered a compensable in-, jury and, if so, to grant an award to the injured employee or his dependents. The evidence necessary to establish a compensable injury would of necessity be the same in each case. The term ‘abatement’ as used in the Stone and Holts Cases does not mean that the dependent must begin a new proceeding. Such dependent may continue the original claim for compensation by the substitution of a new party claimant and continue the proceedings for the purpose of determining the rights of such dependent.”
The key question was stated by the appeal board as follows:
“Does the fact that the legislature enacted a law which gave the injured employee a right to be compensated for his injury and then having also enacted a provision. which gave his dependents a right to certain compensation when the injury is the proximate cause of death foreclose an administrator of the deceased’s estate from maintaining an action, to secure that which did accrue during the lifetime of the employee where death from causes unrelated to the injury intervened before such employee could secure a determination of his rights ?”
In tracing the development of the law, the appeal board analyzed the question as follows:
“When the statute was first enacted in 1912, the legislature did provide as a part of the death benefit accruing to the dependents certain compensation which could have accrued during the compensable period during the lifetime of the employee when and if ‘death results from the injury.’ This provision read as follows:
“(PA 1912 [1st Ex Sess], No 10, part 2, §5) ‘When weekly payments have been made to an injured employee before his death the compensation to dependents shall begin from the date of last such payments, but shall not continue more than 300 weeks from the date of the injury.’
“The above-noted provision could well account for some of the seemingly inconsistent decisions which have been entered. It could also account for the language used by the legislature which requires that in the case of death from the injury compensation shall be paid to dependents. This provision was, however, stricken from the statute by PA 1943, No 245.
“When we keep in mind that the last-noted provision was there at the time the language of part 2, §12 was first enacted, we can better understand what was being provided in section 12. Said section (CL 1948, §412.12 [Stat Ann 1960 Rev §17.162]) now provides as follows:
“ ‘The death of the injured employee prior to-the expiration of the period within which he would receive such weekly payments shall be deemed to end such disability, and all liability for the remainder of such payments which he would have received in case he had lived shall be terminated, but the employer shall thereupon be liable for the following death benefits in lieu of any further disability indemnity.
“ ‘If the injury so received by such employee was the proximate cause of his death, and such deceased employee leaves dependents, as hereinbefore specified, wholly or partially dependent on him for support, the death benefit shall be a sum sufficient, when added to the indemnity which shall at the time of death have been paid or become payable under the provisions of this act to such deceased employee, to make the total compensation for the injury and death exclusive of medical, surgical and hospital services and medicines furnished as provided in section 4 hereof, equal to the full amount which such dependents would have been entitled to receive under the provisions of section 5 hereof, in case the injury had resulted in immediate death, and such benefits shall be payable in the same manner as they would be payable under the provisions of section 5 had the injury resulted in immediate death.’
“It should be noted that the above quoted section contains two separate paragraphs. One terminates ‘disability’ and liability for ‘remainder’ of compensable period; the other establishes a death benefit where the injury was the ‘proximate cause’ of death and the employee leaves dependents as defined. It is here worthy of further emphasis to note that the above-quoted section does not provide that death ends liability and abates the claim. It provides only that death from any cause ‘be deemed to end such disability,’ and the ‘remainder’ of such payments which would have been payable had the employee lived are terminated. We cannot construe the word ‘disability’ as being synonymous with liability, nor is the word ‘remainder’ synonymous with the word ‘accrued.’
“Where the injury is the ‘proximate cause’ of death and ‘the deceased employee leaves dependents,’ the statute provides that the dependents shall be compensated as if death had been immediate. The amounts which the statute provides as a death benefit to those dependent is a sum sufficient when added to the indemnity which shall at time of death [have?] been paid ‘or become payable’ to make the total compensation for the injury and death equal to the amount which would have been payable if the injury had caused immediate death. We cannot construe such provision as being a legislative directive that the claim for that which had accrued during the lifetime of the employee abates if the death was unrelated to the injury.
. “It is quite evident that section 12 deems ‘disability’ to have ceased when death occurs from any cause and it does terminate liability for the payment of the ‘remainder’ of compensation which might have accrued if the employee had lived during the total compensable period. The language used by the legislature in section 12 was necessary because section 10 had deemed certain type injuries to have caused ‘disability’ for specified periods. This presumption of disability found in section 10 immediately preceding section 12 could well have extended liability beyond the date of death without the above provisions found in section 12. After stating that ‘disability’ ceased on the date of death from any cause, the legislature did then enact in this section the death benefit equal to that payable where death was immediate ‘if’ the injury was the ‘proximate cause’ of the death. With the exception that it did terminate the period of disability, this section did nothing whatsoever to the rights of the deceased or the rights of the administrator of. his estate where death was unrelated to the injury or where the employee left no dependents wholly or partially dependent upon him. If death was not related to the injury, it is apparent that a decedent’s administrator has no right to death benefits. However, the provisions of section 12 did not abate the administrator’s right to that which accrued to the employee during his lifetime.” (Emphasis added.)
Without recognizing the significance- of the sections of the workmen’s compensation act applicable to dependents in effect at the time of the Stone and Holts Gases, this Court announced in Hoffman v. Parker Monument Co. (1939), 290 Mich 394, 395, where the employee died from a disability due to occupational disease before any award had been made and a daughter sought to continue the claim as executrix and purported assignee but not as a dependent, “We have repeatedly held that the workmen’s compensation act contains no provision for continuing the prosecution of a claim by a personal representative of. a deceased workman,” citing Schlickenmayer, Munson and Stone.
In Nacey v. Utley (1940), 295 Mich 266, 270, it was said:
“The case here stands solely on the petition of the. plaintiff, now decehsed, on which no compensation had yet been paid or finally awarded at the time of-his death. The rights, if any, of a dependent or a personal representative of the deceased are not before the'department or this Court in the instant case. * * *
“The liability of the employer, if the employee’s death results from a compensable injury, is to the-employee’s dependents. The employee’s death prior to the -final order of the department of labor and industry awarding compensation ends the employer’s liability to pay compensation to the employee and his proceeding to recover the same becomes abated thereupon. Stone v. Smith, 275 Mich 344.”
Clearly, the Court in Nacey v. Utley never reached the question of the right of a personal representative to continue with the employee’s claim.
In Benton Harbor Malleable Industries v. General Motors Corporation, 358 Mich 684, Justice Kelly followed the holding of the Stone Case in concluding that after the death of the employee any proceedings before the referee should be for the purpose of determining the rights of the dependent to compensation under part 2, § 5 of the workmen’s compensation act.
The foregoing analysis serves to show that the cases of Schlickenmayer, Munson, Stone, Holtz, Utley and Benton Harbor Malleable are distinguishable on their facts from the instant case and are not controlling here. Any dictum to the contrary appearing in those cases is no longer to be followed, and is hereby disapproved. To the extent that the holding in Hoffman v. Parker Monument Co., supra, is in conflict with the views herein expressed, such holding is hereby overruled.
This Court stands committed to the rule that: ¡
“The test of an injured employee’s right to compensation is his inability by reason of the accident to work and earn wages in the employment at which he was engaged when injured.” Levanen v. Seneca Copper Corporation, 227 Mich 592, 601.
See, also, Millaley v. City of Grand Rapids, 231 Mich 10; Smith v. Pontiac Motor Car Co., 277 Mich 652; Thomas v. Continental Motors Corp., 315 Mich 27; Dunavant v. General Motors Corporation, 325 Mich 482.
The proceedings in this case culminating in the order of the appeal board, supported by its opinion on review on remand from this Court, establish that Magnus Larson fully met this test. There is no sound reason why the compensation owing to him should not be collectible by his personal representative, the same as unpaid wages would be.
3.
I would dispose of counsel’s contention that section 2921 of chapter 29 of the revised judicature act of 1961 (CLS 1963, § 600.2921 [Stat Ann 1962 Eev § 27A.2921]) applies by saying that the revised judicature act is a statute of general nature relating to organization and jurisdiction of the courts and matters of civil procedure. It is not a part of the workmen’s compensation act and upon the authority of Autio v. Proksch Construction Company, 377 Mich 517, Martin v. White Pine Copper Company, 378 Mich 37, and Pevarnic v. Northwestern Leather Company, 378 Mich 48, its provisions are not applicable to proceedings for workmen’s compensation.
4.
Finally we are asked to determine whether the appeal board’s finding that Magnus Larson suffered a personal injury arising out of and in the course of his employment which was causally related to his disablement from heart disease was supported by some competent evidence and also whether the appeal board’s finding that notice was timely given and claim was timely made was supported by competent evidence. We have examined the record and find that the findings of the appeal board as to both questions are supported by competent evidence.
I would affirm the order of the appeal board with costs to appellee.
T. M. Kavanagh and Souris, JJ., concurred with Adams, J. | [
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Dethmers, J.
Plaintiffs had been judges and members of the Michigan judges’ retirement system. All of them retired from their judicial offices before January 1, 1960. They brought these original man damus proceedings in this Court on September 29, 1964, to compel defendant board to increase the pension payments to them from the $6,250 per annum they were receiving to $7,500, commencing from September 6, 1963, the effective date of PA 1963, No 172, which raised the salaries of circuit judges from $12,500 to $15,000 annually.
PA 1951, No 198 (CLS 1961, § 38.801 et seq. [Stat Aun 1962 Rev § 27.125(1) et seg.]), created the retirement system for those Supreme Court Justices, circuit judges, recorders judges, and superior court judges who, as the act provided, should elect to become members of the system.
Section 11 of that retirement act provides that members of the system shall be the judges who agree to become members. A written agreement is required on a form to be provided by defendant board. Thus, membership is not compulsory but voluntary on the part of the judges.
Each of the plaintiffs voluntarily executed the necessary form of agreement to become a member and thereafter, through salary deductions by the State, made voluntary contributions to the system in the amounts provided for by the act. By reference, the provisions of the act were made a part of the agreement.
As of January 1, 1960, each plaintiff, having retired, was receiving an annuity of $6,250, being one-half of the amount of the $12,500 salary then currently being paid to circuit judges. This was in accord with the requirement of section 14 of the retirement act as amended by PA 1956, No 224 which called for pension payments in amounts equal to one-half of the salary currently being paid to circuit judges, This 1956 amendment as to amounts of pension payments has been referred to as the escalator clause, because it tied the amount of the pension to the increases which might from time to time be granted in salaries to circuit judges.
In 1961, by PA No 169, the act was again amended, to eliminate the escalator clause. It provided for pension payments in the amount of one-half of the salary being paid by the State to the judge at the time of his retirement.
By PA 1963, No 172, the annual salary to be paid by the State to circuit judges was increased from $12,500 to $15,000. Thereupon defendant board was confronted with the question of whether plaintiffs’ rights to an annual pension were to be considered increased in amount by the 1963 salary increase for circuit judges in accord with the escalator clause of the 1956 amendment or barred therefrom by the 1961 amendment eliminating the escalator clause from the retirement act. Acting on the advice of the attorney general, defendant board declined to pay plaintiffs the increase. Hence, this suit.
Plaintiffs’ contention is that they acquired a vested interest in the rights conferred by the retirement act, including the 1956 amendment creating rights under the escalator clause. This would apply not only to those retiring during the time the escalator clause stood unrepealed as a part of the statute (1956-1961) but also to those to whom, by the act’s own terms, it was expressly made applicable, namely, those who had theretofore retired. These rights, so plaintiffs say, cannot be abrogated by giving retroactive effect to the subsequent 1961 amendment eliminating the escalator clause after plaintiffs already had retired and started receiving benefits in accord with the act.
Defendant submits that no vested or contractual rights are involved; that, therefore, elimination of-the escalator clause was properly within the powers of the legislature; and that, accordingly, plaintiffs’ rights to benefits are entirely dependent on section 14 as it now stands, namely, as amended in 1961. For this proposition, defendant urges as authority Brown v. City of Highland Park, 320 Mich 108; Wyrzykowski v. Budds, 324 Mich 731; Attorney General v. Connolly, 193 Mich 499; Attorney General v. Chisholm, 245 Mich 285; Thiesen v. Dearborn City Council, 320 Mich 446. In those cases membership of public employees in the retirement system was a condition of employment, compulsory, and deduction from their pay was mandatory, the deductions being placed in a public fund for financing retirement benefits. This Court held that these were not contributions by the employees of their own money but an-appropriation of what had at all times been public-money, that the employees had not voluntarily entered into an agreement, that, therefore, a contract, for retirement benefits had not been made or consummated between the public employing unit of government and the employees, and so, no question of impairment of contracts could be deemed to be. presented by a diminishing of benefits under the pen-, sion plan. Such decisions relating to retirement plans involving compulsory membership and mandatory contributions to the fund of what was deemed to be public money only, although deducted from salaries, have no application to the instant ease in which membership and contributions to the fund by the judges are voluntary and a written agreement is entered into between the judges who elect so to do and the judges’ retirement board acting for the State. Here a contract is created by such mutual action on the part of the two contracting parties, with the judges’ own money, earned as part of their salaries, being by their consent and at their direction taken therefrom and placed in the retirement fund as the judges’ voluntary contribution thereto and as a consideration for the State’s agreement to pay a pension to them. In Johnson v. Douglas, 281 Mich 247, 256, this Court said:
“The essential elements of a contract are parties competent to contract, a proper subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.”
Here the judge voluntarily agrees to enter the system and pay the contributions, he does pay, and the State agrees to pay certain retirement benefits. There is, then, legal consideration, mutuality of agreement, and mutuality of obligation. A contract is made. Accordingly, a problem of impairment of contract is involved here, as contrasted with the above cited Michigan cases relied on by defendant.
Michigan Constitution of 1908, art 2, § 9, followed by Michigan Constitution of 1963, art 1, § 10, and article 1, § 10, of the United States Constitution, prohibit the impairment by State law of the obligation of a contract. Vested rights acquired under contract may not be destroyed bjr subsequent State legislation or even by an amendment of the State Constitution. See City of Lansing v. Michigan Power Co., 183 Mich 400; Ramey v. Michigan Public Service Commission, 296 Mich 449; Village of Constantine v. Michigan Gas & Electric Co., 296 Mich 719; Michigan Public Service Company v. City of Cheboygan, 324 Mich 309.
In this case plaintiffs, who had been judges and contributing members of the judges’ retirement system, elected to and did retire under the governing act. Under that act and particularly section 12 thereof, they, thereupon, ceased to be members of the system. When they so retired and ceased to be members of the system, their contract was completely executed and their rights thereunder became vested. These could not, thereafter, be diminished or impaired by legislative change of the judges’ retirement statute. In support hereof see: State v. City of Jacksonville Beach (Fla.), 142 So 2d 349 (affirmed 151 So 2d 430); Bardens v. Board of Trustees of Judges Retirement System, 22 Ill 2d 56 (174 NE2d 168); Jensen v. Pritchard, 120 Ind App 439 (90 NE2d 518); Clarke v. Ireland, 122 Mont 191 (199 P2d 965); Ball v. Board of Trustees of the Teachers Retirement Fund, 71 NJL 64 (58 A 111); Crawford v. Teachers Retirement Fund Association, 164 Or 77 (99 P2d 729); Board of Trustees of Police Pension & Retirement System v. Kern (Okla), 366 P2d 415.
For annotations of the cases, some involving the compulsory and others the voluntary types of pension systems and, with respect to the compulsory, kind some holding one way and some the other, but holding in the main as to the voluntary kind that', a contract results which may not be impaired nor benefits diminished by the employing governmental unit, see 52 ALR2d 437-482, superseding the previous 54 ALE 943, 98 ALE 505, 112 ALE 1009, and 137 ALE 249.
We hold that a valid contract was entered into between judges and the State, that the State’s agreement thereunder to pay the judges certain benefits created vested rights for the judges upon their retirement, that these are enforceable and cannot be impaired or diminished by the State. This should be deemed to include not only the benefits provided by statute at the time of entry into the contract and of retirement, but, also, those later added by statutory amendment. The legislature may add to but not diminish benefits without running afoul of con stitutional prohibition against impairment of the obligation of a contract.
Question has been raised whether this Court has jurisdiction in this original proceeding for mandamus or, otherwise stated, whether there were methods of review of a decision of defendant "board provided by statute available to plaintiffs so that their prayer for mandamus was inappropriate.
Defendant says, in its brief, “There can be no doubt that this Court may grant mandamus”, citing Superx Drugs Corporation v. State Board of Pharmacy, 375 Mich 314, 320. Defendant says further, however, that the essential issue is whether mandamus is appropriate here when plaintiffs could have taken advantage of the administrative procedure act, CLS 1961, §24.101 et seq. (Stat Ann 1961 Rev § 3.560[21.1] et seq.) or RJA, PA 1961, No 236, § 631 (CLS 1961, § 600.631 [Stat Ann 1962 Rev § 27 A-.631]), and particularly its section 4 providing for a hearing before the retirement board and section 8 allowing review in circuit court. Defendant then again refers to the Superx Case and language in the Court’s opinion to the effect that while we may issue mandamus, our policy is to adhere in all but extremely rare instances to the method of review of administrative agencies which is provided by specific statutes and covered generally by the administrative procedure act. Defendant also cites cases for the proposition that mandamus will be allowed only in cases of a clear legal right in plaintiff and a clear legal duty in defendant. Toan v. McGinn, 271 Mich 28; Rupert v. Van Buren County Clerk, 290 Mich 180; Solo v. City of Detroit, 303 Mich 672; Local 321, State, County & Municipal Workers of America v. City of Dearborn, 311 Mich 674; Taylor v. Ottawa Circuit Judge, 343 Mich 440; Leininger v. Secretary of State, 316 Mich 644; City of Jackson v. Commiss ioner of Revenue, 316 Mich 694. These elements, says defendant, do not exist in this case.
Plaintiffs say in their brief:
“This is not a proceeding to collect damages, nor is it a suit to collect a money judgment. In this original proceeding these plaintiffs are asking for specific relief, namely, that this Court shall direct the defendant board, to perform a ministerial duty according to the law, imposed by the provisions of the judges’ retirement act, and in the performance of which neither the exercise of judgment nor discretion is involved or required.
“This is therefore not a proceeding comparable to that which this Court has so recently considered in Superx Drugs Corporation v. State Board of Pharmacy, 375 Mich 314. The exercise of discretion is not here present.”
We think this is not a case of review of the defendant board’s exercise of judgment or discretion. No question of fact is presented. Rather, this case calls for judicial declaration of the law and announcement of plaintiffs’ clear legal rights and defendant’s clear legal duty under the retirement act and the constitutional guarantees against impairment by legislative act of a contract and the rights acquired and vesting under it and the statute. We may, and in this case should, allow issuance of the writ. Chemical Bank & Trust Co. v. County of Oakland, 264 Mich 673; People, ex rel. Township of LaGrange, v. State Treasurer, 24 Mich 468; Tennant v. Crocker, 85 Mich 328; National Bank of Detroit v. State Land Office Board, 300 Mich 240; Porter v. State Land Office Board, 308 Mich 324.
Plaintiffs are entitled to the relief sought. If necessary, .the writ or order will issue as prayed.. Costs to plaintiffs.
T. M. Kavanagh, C. J., aud Smith and O’Hara, JJ., concurred with Dethmers, J.
This aet amended PA 1961, No 236, § 555 (GLS 1961, § 600.555). See Stat Ann 1963 Cum Supp § 27A.555.—Reporter
CLS 1956, §38.814 (Stat Ann 1959 Cum Supp § 27.125[14]).— Reporter.
OLS 1961, § 38.814 (Stat Ann 1962 Rev § 27.125[14]).—Reporter.
While writ of mandamus was here sought, GCE 1963, 711.3 provides for superseding thereof by order of superintending control, Sueh order should be deemed sought and granted here. | [
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Kelly, J.
Plaintiff, a tenant, was injured in a fall which occurred on the front steps of defendant’s building. On the date of the accident (June 13, 1960) there was only one handrail on the stairs in question. In his action to recover damages plaintiff alleged general grounds of negligence and, specifically, that defendant violated section 42 of the State housing law which requires handrails on both sides of any stairway in multiple dwellings. Defendant’s answer denied such allegations and asserted contributory negligence as an affirmative defense.
At the close of plaintiff’s proofs, defendant made a motion for directed verdict and the court reserved judgment. The case went to the jury solely on the basis of the lack of a handrail on the stairs. The trial judge charged the jury that the failure to have a handrail on both sides of the stairs was negligence per se as a violation of the State housing law, and the jury returned a verdict of $3,000 for plaintiff.
After hearing argument of counsel the court granted defendant’s motion for judgment non obstante veredicto, stating that section 42 of the State housing law did not apply to defendant’s building, as defendant’s building was constructed at least 15 years before the enactment of tbe housing law.
Plaintiff moved the court to set aside the judgment non obstante veredicto or, in the alternative, to grant a new trial. Both motions were denied and the court of appeals has affirmed the judgment. See Welsh v. Ohanesian, 1 Mich App 290.
On appeal plaintiff urges two points: First, that the State housing law (effective August 10, 1917) applies retrospectively to defendant’s building, which was constructed in about 1900; and, second, that the judgment non obstante veredicto deprived plaintiff of having the jury pass upon the question of whether defendant was guilty of common-law negligence.
When originally enacted in 1917 the State housing law was divided into six articles, as follows:
Article I — General Provisions, §§ 1-10;
Article II — Dwellings Hereafter Erected, §§ 11-50a;
Article III — Alterations, §§51-64;
Article IV — Maintenance, §§ 65-88;
Article V — Improvements, § § 89-97 ;
Article VI — Requirements and Remedies, §§ 98-117.
Appellant calls attention to the fact that “originally, in 1917 the housing act was enacted with 40 subsections which had 40 statutes involved in it,” and that the words “dwellings hereafter erected” were contained in each of the sections of article 2; that subsequently five sections, including section 42, which required handrails on both sides of any stairway in multiple dwellings, eliminated the words “in dwellings hereafter erected.”
Appellant contends the appellate court’s opinion “completely negates the whole concept of the legislature” by finding that:
“Appellant’s argument that by the elimination of the words ‘hereafter erected,’ the legislature intended to make section 42 applicable to all multiple dwellings, regardless of when built, is untenable. In view of the title of the article in which these words appear, their removal merely eliminated a redundancy.” Welsh v. Ohanesian, 1 Mich App 290, 293.
The importance of the title to the act in relation to all the sections under the title is commented upon in 1 Sutherland Statutory Construction (3d ed), § 1709, p 299, as follows:
“Under the constitutional provision, a title is an indispensable part of every statute, and the expression of the subject of the act must be found, if at all, in the words of the title.”
The Michigan Constitution of 1908, art 5, § 21, required that an act shall have but “one object, which shall be expressed in its title,” and this requirement of the Constitution was commented upon in Vernor v. Secretary of State, 179 Mich 157 (Ann Cas 1915D 128), where it was stated at page 160:
“What is the constitutional test? We think it is that a title must embrace the object of the act, and • the body of the act must not be inconsistent with the title.”
Likewise, in State Mutual Rodded Fire Insurance Co. v. Foster, 267 Mich 118, 121, it was said:
“The body of the act must not contain provisions contrary to or not germane to the object stated in the title, since the title gives notice that no matters except those which it indicates will he found in the body.”
This finding that the body of the act must not be , inconsistent with the title was also approved in Arnold v. Ogle Construction Company, 333 Mich 652, 661:
“The fact that the title was not changed except to cover the new provisions added to the act clearly indicates that the legislature did not intend to otherwise change the law.”
The section in question (CL 1948, § 125.442 [Stat Anil 1958 Rev § 5.2813]) is not confined to the provision in regard to handrails being provided on both sides of the stairs, as the first paragraph of this section deals with grades, treads, and risers of stairs and their height, measurements, and proportions; the second paragraph deals with vertical rise of stairways; the third paragraph with length and width of landings and distance between risers on landings; the fourth paragraph deals with measurement of winders and stairs and has but one sentence that is most pertinent to this appeal, namely: “Hand-rails shall be provided on both sides of all stairs.”
We stated in In re Davis’ Estate, 330 Mich 647, at page 651:
“It is a fundamental rule of law that the legislature must give a clear, direct and unequivocal expression of its intent to that effect if the statute is to have retroactive effect.”
We quote with approval from the trial court’s opinion granting motion for judgment non obstante veredicto and denying motion for new trial, as follows :
“Had the legislature wished to make effective immediately CL 1948, § 125.442 (Stat Ann 1958 Rev § 5.2813), they could have done so easily by the. use of appropriate language, such as:. This amendment shall be effective immediately and shall apply to existing structures.
“This they have not done. Or, if the legislature had wished to make the handrail requirement applicable to existing structures, the amendment could have been placed under article V, Improvements (see In re Davis’ Estate, 330 Mich 647).
“Finally, we are persuaded to our conclusion, also, by studying sections appearing immediately after the subject sections, CL 1948, §§ 125.443-125.447, 125.450a (Stat Ann 1958 Rev §§ 5.2814-5.2818 and 5.2822), all of which, it is clear, apply only to buildings hereafter erected.
“It is therefore held that the amendment does not apply to structures existing at the time of passage, that is, 1923, and that plaintiff’s motion for judgment non obstante veredicto must be granted, without costs.”
The title to article 2 has remained “Dwellings Hereafter Erected” from its original enactment down to the present time.
The appellate court did not err in holding (p 293): “The trial court properly held section 42 did not apply to defendant’s rooming house.”
Appellant’s contention that the judgment non obstante veredicto deprived him of having the jury pass upon all justiciable issues is also without merit.
The question is more accurately presented by appellee: “Where plaintiff-appellant agreed at the time of trial that the case should go to the jury solely on the basis of a lack of handrail on the stairs in question, and made no objection to the charge, can plaintiff-appellant claim error in the charge?”
Appellant, in his statement of facts, admits that: “Plaintiff agreed that the matter should go to the jury solely on the basis of the lack of a handrail on the stairs in question.”
Whether other issues could have been presented to the jury cannot be argued on appeal since the jury charge was not objected to at the time of trial. See GCR 1963, 516.2; Salvatore v. City of Harper Woods, 372 Mich 14, 19.
The decision of the court of appeals is affirmed. Costs to appellee.
Dethmers, Black, and O’Hara, JJ., concurred with Kelly, J.
CL 1948, § 125.442 (Stat Ann 1958 Key § 5.2813).
See GCR 1963, 515.—Reporter. | [
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Kavanagh, J.
We granted leave to appeal in this case to determine "whether a co-owner of land on which a drag-strip race track is operated by the other co-owner is responsible for injuries occurring on that land to a spectator of the races”. We hold that such co-owner is not, and affirm the Court of Appeals.
Prior to May 6, 1970, defendant Marie Ledford was the sole owner of approximately 25 acres of land. On that day she executed a quitclaim deed to the property to herself and her son, defendant James Ledford, as tenants in common. The consideration recited was $500. For some time James Ledford had been planning to operate a race track on the property.
On the day the race track opened, May 30, 1970, the flywheel on a car driven by defendant Howard Nickelson exploded, throwing steel fragments into the crowd. Plaintiff Alan Merritt, a spectator, was struck and killed by one of the fragments.
Plaintiff, administratrix of Alan Merritt’s estate, brought suit for wrongful death against Nickelson and Marie and James Ledford. Nickelson’s insurance company settled the claim on his behalf for $8,500 and the cause continued to trial against the Ledfords.
The basis for plaintiffs complaint against the Ledfords was that as owners and operators of the race track, they were negligent in failing to make a safety inspection of the cars and in failing to require that the cars be equipped with a scatter shield for the flywheel, pursuant to the recommendations of the National Hot Rod Association.
The trial court, sitting without a jury, gave judgment for plaintiff against both defendants Led-ford for $137,000.
Marie Ledford appealed, arguing that she was not negligent and that there was no basis upon which her son’s negligence could be imputed to her. Although she did not testify at trial, the record reveals that James Ledford was the sole owner and proprietor of the business. He testified that his mother neither invested money in the business, participated in its formation or opera tion, nor shared in its profits. Plaintiff offered no evidence to contradict this testimony.
The Court of Appeals reversed judgment against Marie Ledford, holding that mere co-ownership in land, without a showing of possession or control, was an insufficient basis upon which to impose liability for the defective condition of the premises. Merritt v Nickelson, 80 Mich App 663; 264 NW2d 89 (1978).
As a business invitee on the property, Alan Merritt had the right to expect that the premises would be maintained and the business conducted in a reasonably safe manner. Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975); McIntyre v Pfaudler Vacuum Fermentation Co, 133 Mich 552; 95 NW 527 (1903). This duty of care was owed to him both by the invitor who solicited his business and by the possessors of the premises. See, e.g., Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 408; 97 NW2d 90 (1959).
Invitors are liable for known dangerous conditions of property and for dangerous conditions which might be discovered with reasonable care, regardless of whether they have legal title or control over the premises. District of Columbia v Thomas, 130 US App DC 365, 367; 401 F2d 430, 432 (1968); Danisan v Cardinal Grocery Stores, Inc, 155 Cal App 2d 833; 318 P2d 681 (1957). From this record it does not appear that Marie Ledford was an invitor. James Ledford, as sole operator of the business, expected to derive an economic benefit from the public’s presence, and he alone impliedly warranted the premises’ safe condition in his invitation. Prosser, Torts (4th ed), § 61, pp 386, 388.
Plaintiff asserts, however, that Marie Ledford is jointly liable for her son’s negligent acts because she was the co-owner of the property on which he, the invitor, conducted his business.
We disagree.
Premises liability is conditioned upon the presence of both possession and control over the land. This is so because
"[T]he man in possession is in a position of control, and normally best able to prevent any harm to others.” Prosser, supra, § 57, p 351.
Michigan has consistently applied this principle in imposing liability for defective premises. Quinlivan, supra, 267; Bluemer, supra, 408; Nezworski v Mazanec, 301 Mich 43, 56; 2 NW2d 912 (1942) (landlord-tenant cases); Bauer v Saginaw County Agricultural Society, 349 Mich 616, 623; 84 NW2d 827 (1957) (amusement park/concessionaire case); Dombrowski v Gorecki, 291 Mich 678, 681; 289 NW 293 (1939) (tenancy by entireties case).
Our application of this principle is in accordance with the Restatement of Torts. The Restatement imposes liability for injuries occurring to trespassers, licensees, and invitees upon those who are "possessors” of the land. 2 Restatement Torts, 2d, §§ 333-350, pp 183-233. A "possessor” is defined as:
"(a) a person who is in occupation of the land with intent to control it or
"(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
"(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).” Id., § 328 E, p 170.
Ownership alone is not dispositive. Possession and control are certainly incidents of title owner ship, but these possessory rights can be "loaned” to another, thereby conferring the duty to make the premises safe while simultaneously absolving oneself of responsibility. Quinlivan, supra, 269.
The mere fact that Marie Ledford was a tenant in common with her son did not place her in occupancy of the land with the intent of controlling it. As a tenant in common, she was entitled to enter upon every part of the land and to occupy and enjoy the whole, DesRoches v McCrary, 315 Mich 611; 24 NW2d 511 (1946); it does not appear here that she chose to do so. Her freehold was separate and distinct from that of her son. His occupancy of the land was under his own right, not hers. Everts v Beach, 31 Mich 136 (1875). He was not her agent by the mere fact of their joint ownership nor were the acts performed by him transformed into a joint venture. 20 Am Jur 2d, Cotenancy and Joint Ownership, § 2, p 93.
Plaintiff argues that the obligation to keep one’s premises reasonably safe for use of business visitors is a liability that an owner may not avoid. She cites fairground and amusement park cases where owners of property were held liable for the negligent acts of concessionaires or third parties whom the owners allowed to use the premises. She asserts:
"There is no reason to believe that a non-operating co-owner of land should be relieved from liability for the negligent condition and operation carried on by the active co-owner when a non-operating sole owner is not relieved from liability for a condition or activity carried out on the owner’s premises by an independent third party.”
This misperceives the issue. Again, it is the unity of possession and control that is dispositive. A "possessor” of property must exercise reasonable care in avoiding harm to others on his property from the negligent acts of third persons because he is in possession and control of the premises and in a position to exercise the power of control or expulsion. Prosser, supra, § 61, p 395. See, also, 2 Restatement, supra, § 344, p 223; § 383, p 287. In no case cited by plaintiff did the owner of the property give up control of the premises.
When one co-owner of land cedes possession and control of the premises to her co-owners, the law is satisfied to look to those co-owners actually in control for liability for injuries to third persons. The record in the present case does not establish that Marie Ledford, exercised her right to possession and control over the property. Insofar as James Ledford became the sole "possessor” of the land within the meaning of the Restatement, supra, he alone owed a duty of care to the invitees who entered the premises. Id., § 344, p 223; § 341 A, p 209.
We find the Court of Appeals disposition of this case appropriate. Accordingly, we remand this cause to the trial court for the disposition set forth at 80 Mich App 668-669.
Affirmed.
Coleman, C.J., and Levin, Fitzgerald, and Ryan, JJ., concurred with Kavanagh, J.
Rockwell v Hillcrest Country Club, Inc, 25 Mich App 276; 181 NW2d 290 (1970); McCarron v Upper Peninsula Hauling Ass’n, 13 Mich App 168; 163 NW2d 805 (1968); Arnold v State, 163 App Div 253; 148 NYS 479 (1914); Virginia State Fair Ass’n v Burton, 182 Va 365; 28 SE2d 716 (1944); Bauer v Saginaw County Agricultural Society, 349 Mich 616; 84 NW2d 827 (1957). | [
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Coleman, C.J.
The principal question presented is whether a sheriffs decision not to reappoint a deputy for another term of service must be submitted to binding arbitration for review.
MCL 51.70; MSA 5.863, which was first enacted in 1846 and revisited by the Legislature in both 1969 and 1978, concerns, inter alia, the specific subject of the authority of sheriffs to appoint and discharge their deputies. In language which had remained virtually unchanged since its original enactment, it provided at all times relevant to this case:
"Each sheriff may appoint 1 or more deputy sheriffs at his pleasure, and may revoke such appointments at any time * * *.”
MCL 423.233; MSA 17.455(33), which was enacted in 1969, concerns the specific subject of the arbitration of public police and fire department labor disputes. However, it does not state whether these disputes include "grievance” as well as "interest” disputes; nor does it mention any particular kinds of grievance disputes, such as those involving a discharge or failure to reappoint. At the time the dispute in this case arose, the arbitration statute stated:
"Whenever in the course of mediation of a public police or fire department employee’s dispute, the dis pute has not been resolved to the agreement of both parties within 30 days of the submission of the dispute to mediation and factfinding, or within such further additional periods to which the parties may agree, the employees or employer may initiate binding arbitration proceedings by prompt request therefor, in writing, to the other, with copy to the labor mediation board.”
Our brethren contend that by enactment of this statute the Legislature implicitly intended sub silentio to repeal MCL 51.70; MSA 5.863 and require compulsory binding arbitration of grievance disputes, including those involving a sheriffs decision not to reappoint a deputy.
We must respectfully disagree. The Legislature plainly intended MCL 423.233; MSA 17.455(33) only to provide for arbitration of "interest” disputes where the normal process of collective bargaining over the terms of a new contract has broken down. It has clarified that intention by a recent amendment to the statute. Since the statute does not apply to individual grievances like the present dispute, it is not necessary to consider whether it can be reconciled with the statute which empowers the sheriff to appoint and remove deputies.
I
The plaintiff was first appointed to serve a term as a deputy sheriff in 1957. He was subsequently reappointed to successive terms by various sheriffs, including the defendant when first elected in 1969. At the end of 1972, however, the defendant informed him that he would not be reappointed for the coming term.
The collective bargaining agreement in effect at the time of the defendant’s decision not to reappoint the plaintiff included a detailed five-step grievance procedure. Step 1 provided for discus sion of the grievance with the sheriff or the sheriff’s designated representative. The grievant could, if he so desired, be represented by his local union representative. If no mutually satisfactory resolution resulted from step 1, step 2 provided for further discussions at the departmental level. Step 3 provided for discussion of the grievance with the designated representative of the county board of commissioners, and for a written disposition of the grievance by that representative within 48 hours. Step 4 provided for a hearing before the same representative, and a written opinion within 48 hours. Step 5 provided for mutual consent arbitration.
The plaintiff filed a grievance pursuant to these procedures on the day he was informed by the defendant that he would not be reappointed for the coming term. At the hearing conducted before the representative of the board of commissioners, however, the plaintiff refused to respond to the written charges of misconduct leveled against him. The grievance was thereafter resolved against the plaintiff, and the defendant did not consent to submit the grievance to arbitration, as he had a right to do or not to do under the agreement.
The plaintiff filed the instant action in circuit court, asserting, inter alia, that he was entitled to compulsory arbitration of his grievance. He alleged that he had been discharged solely because he had run against the defendant as a candidate for sheriff in the last election. The defendant denied this allegation and alleged that his decision not to reappoint the plaintiff was supported by just cause. Testimony and exhibits presented at trial revealed that this included an alleged failure by the plaintiff to follow jail security procedures, resulting in the escape of three prisoners, and an alleged misuse of sick-leave time, involving the plaintiffs campaigning for sheriff while on extended sick leave for hypertension.
The trial judge did not rule on the merits of the factual allegations made by the parties. Instead, he ruled as a matter of law that MCL 51.70;' MSA 5.863 controlled and supported the defendant’s actions. He concluded:
"Appointment remains the prerogative of the sheriff. If that is going to be changed, it should be changed by the Legislature and not by judicial legislation.”
The plaintiff appealed and the Court of Appeals reversed. Leave to appeal was granted primarily to consider whether the Court of Appeals decision conflicted with this Court’s previous decision in Council No 23, Local 1905, AFSCME v Recorder’s Court Judges, 399 Mich 1; 248 NW2d 220 (1976).
II
We are of the opinion that the Legislature did not intend that MCL 423.233; MSA 17.455(33) would apply to individual grievance disputes. The sophisticated provisions of the police and fire department compulsory arbitration act, MCL 423.231 et seq.; MSA 17.455(31) et seq., of which MCL 423.233; MSA 17.455(33) is a part, are directed toward the resolution of major collective bargaining impasses and the prevention of police and fire department employee strikes. They are inapposite to the resolution of individual employee grievance disputes, which may involve matters as trivial as the length of an employee’s hair or the shine on his or her shoes.
The plaintiffs union apparently recognized this fact. In conjunction with negotiation of the collective bargaining agreement preceding the agreement involved in the case at bar, the union initiated compulsory interest arbitration pursuant to MCL 423.233; MSA 17.455(33) in an attempt to secure a compulsory grievance arbitration provision as a part of the agreement. That would have been unnecessary if MCL 423.233; MSA 17.455(33) itself already provided for compulsory arbitration of grievance disputes. In Grosse Pointe Farms Police Officers Ass’n v Chairman of the Michigan Employment Relations Comm, 53 Mich App 173; 218 NW2d 801 (1974), the chairman of the Michigan Employment Relations Commission also recognized this fact. He denied a plaintiffs request pursuant to the act for appointment of an arbitrator to arbitrate a grievance dispute on the ground that the act was intended to cover only interest disputes and not grievance disputes. Although asked to decide the scope of the act in the Grosse Pointe Farms case, the Court of Appeals declined to address the question because it believed that plaintiffs had improperly bypassed a fact-finding stage provided by their collective bargaining agreement.
However, when the issue of the scope of MCL 423.233; MSA 17.455(33) reappeared in Local 1325, Council No 55, AFSCME v McKervey, 62 Mich App 689; 233 NW2d 836 (1975), the Court of Appeals declared that the statute applied to grievance disputes as well as to disputes arising out of contract negotiations. Our brethren, without analysis, rely upon McKervey and would apply it to all individual grievance disputes occurring prior to the effective date of 1977 PA 303.
A closer examination of McKervey reveals that the Court of Appeals broad reading of MCL 423.233; MSA 17.455(33) was unnecessary to the decision. In that case, the circuit court had voided an arbitration award rendered pursuant to a procedure established in the collective bargaining agreement on the ground that the police and fire department compulsory arbitration act provided the exclusive mechanism for arbitration of police and firefighters’ disputes and preempted any contractual arbitration provision. Ironically, the plaintiff bargaining unit, another local of the same AFSCME council to which Local 1518 belongs, argued on appeal that the act "makes compulsory arbitration applicable only to pre-contract negotiations, not to disputes over rights arising under the collective bargaining contract”. The Court of Appeals rejected that interpretation but recognized that the parties to a contract could establish their own non-statutory arbitration procedure which would take priority over the mechanism provided by the act. That principle would have been sufficient to resolve the McKervey case.
In the case at bar, the contract in effect on December 31, 1972, the date plaintiff Bruin filed his grievance, provided for binding arbitration as a fifth and final step only if the parties mutually agreed in writing. That provision represented the negotiated agreement of the bargaining unit and the county commissioners on the extent to which arbitration would be an available means of resolving individual grievances.
Moreover, the Legislature amended MCL 423.233; MSA 17.455(33) in 1977 to make clear that it did not apply to grievance disputes. (See fn 11.) We view this amendment as a repudiation of the dictum of McKervey, intended to clarify rather than to change the meaning of the statute and therefore entitled to retroactive application. The purported conflict which leads our colleagues to attempt to reconcile this section with the deputy sheriff removal statute is entirely nonexistent.
Ill
The foregoing analysis is not inconsistent with our decision in Council No 23 v Recorder’s Court Judges, 399 Mich 1; 248 NW2d 220 (1976).
In that case a collective bargaining agreement had been entered into establishing a grievance procedure ending in binding arbitration which a probation officer claimed superseded a state statute providing a procedure for the removal of probation officers. In the instant case, the grievance procedure does not end in binding arbitration, and the employee is not claiming that the collective bargaining procedure supersedes the statute, but rather, that he has rights under another statute, the police and fire department compulsory arbitration act, which supersedes the sheriffs statutory powers of removal. We have already indicated our view that no such rights arise under that act.
IV
The Court of Appeals erred in holding, in reliance on McKervey, that MCL 423.233; MSA 17.455(33) compelled binding arbitration of plaintiff Bruin’s grievance.
We reverse.
Kavanagh, Levin, Ryan, and Fitzgerald, JJ., concurred with Coleman, C.J.
Williams, J.
This case considers whether the discharge of a sheriffs deputy is covered by the mediation/arbitration provisions of the public employees relations act (PERA) or by the pre-existing provisions of MCL 51.70; MSA 5.863 which permit a sheriff to discharge a deputy "at any time”.
We hold PERA controls and affirm the Court of Appeals result.
I. Facts
Appellee, James Bruin, served as a deputy sheriff of St. Clair County from January 1, 1957 through December 31, 1972. In the fall of 1972, Deputy Bruin campaigned against appellant, Sheriff Meharg, for the position of Sheriff and lost. On December 31, 1972, Sheriff Meharg informed Deputy Bruin that he would not be reappointed as a deputy. Deputy Bruin filed a grievance challenging his discharge.
There was a collective bargaining agreement adopted under PERA, MCL 423.215; MSA 17.455(15), covering the deputy sheriffs of St. Clair County. The parties to the agreement were the St. Clair County Board of Commissioners and Local 1518 of the St. Clair County Sheriff’s Department Chapter, Council No. 55, AFSCME, AFL-CIO, the duly authorized collective bargaining agent for the deputy sheriffs.
Sheriff Meharg testified that although he had consulted with the commissioners and their negotiator concerning various provisions, he was not bound by the agreement because he was not a party. Yet, Sheriff Meharg complied with the agreement, even those provisions which he did not think proper. Article 12 of the agreement, discharge and discipline, provided "[s]hould the dis charged or disciplined employee consider the charge to be improper, procedures outlined in the grievance procedure provisions of the agreement may be followed by the employee”. Article 4 of the agreement established a five-step grievance procedure ending in binding arbitration by mutual consent only.
Deputy Bruin and Local 1518 brought suit in the circuit court against the sheriff and the Board of Commissioners. Deputy Bruin sought reinstatement and compulsory arbitration of the grievance he filed against the sheriff challenging his discharge. The request for compulsory arbitration was premised on the mandatory mediation/arbitration provision of PERA, MCL 423.233; MSA 17.455(33).
The circuit court found that the sheriff’s power of appointment created by MCL 51.70; MSA 5.863 was absolute. The Court of Appeals, 77 Mich App 145; 258 NW2d 168 (1977), reversed, holding that the collective bargaining agreement adopted under PERA and the mediation/arbitration provision of PERA, MCL 423.233; MSA 17.455(33), take precedence.
We granted leave to appeal February 23, 1978, 402 Mich 881 (1978),
"limited to these questions: (1) can the Court of Appeals decision in this case (77 Mich App 145 [1977]) be reconciled with this Court’s decision in Council No 23, Local 1905, AFSCME v Recorder's Court Judges, 399 Mich 1 [248 NW2d 220] (1976); and (2) if the sheriffs authority under MCL 51.70; MSA 5.863 takes precedence over the collective bargaining agreement between the deputies and the county, is that authority absolute, or, are there safeguards which attach?”
II. Issue
The issue in this case is whether defendant sheriff retains the power to discharge a deputy sheriff without following PERA procedures. If he has such power it is based on MCL 51.70; MSA 5.863, which provides:
"Each sheriff may appoint 1 or more deputy sheriffs at his pleasure, and may revoke such appointments at any time. ” (Emphasis added.)
The PERA impacts this case in two ways. First, the PERA requires a public employer, such as the sheriff, to bargain collectively with his employees. MCL 423.215; MSA 17.455(15). This was the basis for the collective bargaining agreement reached between the employees in the sheriff’s department and the Board of Commissioners of St. Clair County. The sheriff participated in the process in such a way that it is arguable as to whether or not he is bound by this specific contract.
Second, beyond the PERA provision requiring public employers to bargain collectively with their public employees, is the PERA provision requiring mediation/arbitration to be used in public police and fire departments, MCL 423.233; MSA 17.455(33). This police/fire department mediation/ arbitration provision applies to sheriff departments, because "[p]ublic police * * * departments” are defined to mean "any department of a * * * county * * * having employees engaged as policemen”. MCL 423.232; MSA 17.455(32). Sheriff’s deputies certainly are "engaged as policemen”. The police/fire department mediation/arbitration provision read as follows:
"Whenever in the course of mediation of a public police or fire department employee’s dispute, the dispute has not been resolved to the agreement of both parties within 30 days of the submission of the dispute to mediation and fact-finding, or within such further additional periods to which the parties may agree, the employees or employer may initiate binding arbitration proceedings by prompt request therefor, in writing, to the other, with copy to the labor mediation board.” MCL 423.233; MSA 17.455(33).
Ultimately, the issue is whether the sheriffs power to revoke the appointment of deputies "at any time” granted by the prior MCL 51.70; MSA 5.863 persists despite the provisions of the later PERA impacting the sheriffs office as a public employer and as a public police department by MCL 423.215; MSA 17.455(15) and MCL 423.233; MSA 17.455(33).
III. Discussion of Case Law
The case law does not leave us on a completely uncharted sea. Perhaps the strongest statement in favor of the dominance of the PERA is found in Rockwell v Crestwood School Dist Board of Education, 393 Mich 616; 227 NW2d 736 (1975). In Crestwood, this Court said:
"This Court has consistently construed the PERA as the dominant law regulating public employee labor relations [citing Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974); Regents of the University of Michigan v Employment Relations Commission, 389 Mich 96; 204 NW2d 218 (1973); and Wayne County Civil Service Commission v Board of Supervisors, 384 Mich 363; 184 NW2d 201 (1971)].” (Emphasis added.) 393 Mich 616, 629.
We followed that statement up by saying:
"[T]he supremacy of the provisions of the PERA is predicated on the Constitution (Const 1963, art 4, § 48) and the apparent legislative intent that the PERA be the governing law for public employee labor relations.” 393 Mich 616, 630.
In Crestwood, the majority of this Court held that since the case related to striking teachers, the PERA provision, which provided that striking public employees are entitled to a hearing only after discipline, prevailed over the teachers’ tenure act provision, which provided that no teacher on tenure may be discharged until after notice and hearing. 393 Mich 616, 624-625. In other words, a specific provision prevailed over a general one.
On the other hand, in Council No 23, Local 1905, AFSCME v Recorder’s Court Judges, 399 Mich 1; 248 NW2d 220 (1976), this Court held that the general collective bargaining provisions of the PERA, MCL 423.215; MSA 17.455(15), did not prevail over the very specific probate officer removal statute providing for full due process, including among other things a hearing before the whole Recorder’s Court. The majority in that case consisted of two opinions. Justice Lindemer’s opinion, concurred in by Justices Coleman and Fitzgerald, punctuated this point as follows:
" 'In case of conflict between 2 such legislative enactments, the special statute or code must prevail.’ ” 399 Mich 1, 6.
This opinion also stressed that the PERA arbitration could intrude on the judicial function. 399 Mich 1, 6-7.
Justice Williams’ opinion, however, said the first rule was to harmonize the two statutes, if possible, and found that there was no "positive repugnancy” between the PERA’s collective bar gaining provision and the probation officer removal statute. 399 Mich 1, 12.
IV. Application of Law to Instant Case
Turning to the instant case, we have the specific deputy sheriff removal statute confronted by two sections of PERA, the general collective bargaining section and the specific mediation/arbitration section for public police and fire departments. Our first special question in the limited grant of leave to appeal was whether the Court of Appeals decision upholding the PERA can be reconciled with the Recorder’s Court Judges case upholding the probation officer removal statute against PERA’s collective bargaining section. While the deputy sheriff removal statute is neither as detailed nor as specific as the probation officer removal statute, it is sufficiently specific to prevail against the same general collective bargaining provision of PERA, because there is no positive repugnancy between these. It would be possible for the sheriff and deputy sheriffs to bargain collectively about all their affairs except removal and permit the sheriff to remove deputies at any time. That is the lesson of Recorder’s Court Judges.
This leaves us with whether the police/fire department mediation/arbitration section is or is not positively repugnant to the deputy sheriff removal statute.
MCL 423.233; MSA 17.455(33) through statutory definition deals specifically with sheriff department employee disputes. As of the time of this case, the statute did not specify whether both "grievance” and "interest” disputes were involved, or only one or the other. It simply read "employee’s dispute”. We do note that in Local 1325, Council No 55, AFSCME v McKervey, 62 Mich App 689; 233 NW2d 836 (1975), the Court of Appeals held this section to apply to both "grievance” and "interest” disputes between a sheriff and his deputies. We concur. As a consequence, the language of MCL 423.233; MSA 17.455(33) deals specifically with the requirement for mediation/arbitration in sheriff department grievances dealing with discharge and other matters.
This may not be as specific as the PERA discipline procedure for striking public employees in Crestwood, supra, on the one hand, but, on the other hand, the deputy sheriff removal procedure is not as specific nor does it provide the due process procedures of the probation officer removal statute in Recorder’s Court Judges, supra.
In other words, the argument for repugnance or nonrepugnance is not as simple and clear in this case as in our two leading cases above described. As a consequence, we are warranted to see whether there are any corollary indications of whether the Legislature intended a repeal by implication. There are two items that appear to at least suggest the direction of the Legislature’s intentions. One goes to the importance assigned to the PERA police/fire department mediation/arbitration and the other to the importance assigned to the deputy sheriff removal act.
Item 1. Section 1 of the PERA police/fire department mediation/arbitration act (and we must consider the whole statute) states a definite public policy of the Legislature as follows:
"It is the public policy of this state that in public police and fire departments, where the right of employees to strike is by law prohibited, it is requisite to the high morale of such employees and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes, and to that end the provisions of this act, providing for compulsory arbitration, shall be liberally construed.” (Emphasis added.) MCL 423.231; MSA 17.455(31).
Item 2. In Locke v Macomb County, 387 Mich 634; 199 NW2d 166 (1972), a unanimous Court held that MCL 51.351 et seq.; MSA 5.1191(101) et seq., an act to provide optional civil service for sheriffs departments in certain counties and "to regulate the transfer, reinstatement, suspension and discharge” did supersede the deputy sheriffs removal statute, MCL 51.70; MSA 5.863. While this is not the PERA but a different statute, it does indicate that the Legislature does not completely hold with the idea of removal of deputy sheriffs at will.
Viewing the contrasting intentions of the Legislature with respect to the PERA police/fire department mediation/arbitration provision and the sheriff deputy removal statute as a whole, as well as the specific provision of the two statutes, we believe there is a strong legislative intention to support the morale of sheriffs department employees by giving them some protection in their jobs and this intention is directly repugnant to the idea that sheriffs can discharge deputies at pleasure without notice and hearing and without good cause.
V. Conclusion
We therefore conclude (1) that MCL 423.233; MSA 17.455(33), the police/fire department media tion/arbitration statute as of the time of the instant case superseded pro tanto MCL 51.70; MSA 5.863, the deputy sheriff appointment and removal statute, (2) that Council No 23, Local 1905, AFSCME v Recorder’s Court Judges, 399 Mich 1; 248 NW2d 220 (1976), and the decision in the Court of Appeals and in this Court can be reconciled, and (3) that since we have decided the PERA takes precedence, it is not necessary to determine the second question in the limited grant predicated on MCL 51.70; MSA 5.863 taking precedence. It is noted that this decision applies to grievance disputes occurring prior to the effective date of 1977 PA 303 which amends the language herein interpreted.
We affirm the Court of Appeals result.
J. Blair Moody, Jr., J., concurred with Williams,
1846 RS, oh 14, § 70.
1969 PA 183 and 1978 PA 635, § 1.
1969 PA 312.
A "grievance” dispute is one arising under an existing contract, while an "interest” dispute is one arising during collective bargaining negotiations over the terms to be included in a new contract.
"Article Four
"Grievance Procedure
"Step 1.
"a. Any employee having a specified grievance may take the matter up with the Sheriff or the designated representative of the Sheriff, who shall attempt to adjust the matter consistent with the terms of this Agreement.
"b. Any employee may request the Sheriff or the designated representative of the Sheriff to call one of two (2) designated Local Union representatives to handle a specified grievance with the Sheriff or the designated representative of the Sheriff. In this case, the Union representative will be notified without undue delay and without further discussion of the grievance. This procedure shall not unduly delay the operations of the Sheriff’s Department.
"Step 2.
"a. Grievances shall be considered settled at Step 1 unless reduced to writing on appropriate forms signed by the aggrieved employee and delivered to the Office of the Sheriff within 48 hours after the meeting or adjourned meeting at Step 1. In this case, a meeting will be arranged promptly between one of the two designated Union representatives and the Sheriff or his designated representative for the purpose of attempting to settle the grievance at the department level.
"Step 3.
"a. Grievances shall be considered settled at Step 2 unless delivered to the Office of the Secretary of the Board of Auditors of Employer within 48 hours after the meeting or adjourned meeting at Step 2. The designated representative of the Employer shall meet with the Local Union representative not later than 48 hours following receipt of said grievance in the Office of the Secretary of the Board of Auditors, which representatives shall attempt to settle the grievance.
"b. The designated negotiation representative of the Employer shall write his disposition on all copies of the grievance form and shall return it to the Local Union representative within 48 hours following this meeting or adjourned meeting.
"Step 4.
"a. Grievances shall be considered settled at Step 3 unless written notice is delivered to the Office of the Secretary of the Board of Auditors within seven days after completion of Step 3.
"b. Such notice shall contain a request by the Union that a hearing be held within two weeks of the delivery of said notice for the disposition of said grievance. At such hearing both the Union and the Employer may request of any and all parties who have been involved in the grievance up to this step.
"c. At such hearing the Employer may be represented by one or more representatives and the Union may be represented by its Local Union representatives theretofore designated as Grievance Representatives and such other Union Representatives it wishes to have present.
“d. The designated negotiating representative of the Employer shall deliver the opinion of the Employer, relative to the Grievance, to the Union, in writing, within two days following the hearing.
"e. If additional time is deemed necessary to properly investigate matters relative to the grievance at any step outlined above, such additional time may be granted only if mutually agreed upon between the Union and the Employer.
"f. It is agreed that Saturday, Sunday and Holidays shall not be counted in computing time limits provided herein, except when such time limits are measured in weeks rather than days or hours.
"Step 5.
"Nothing herein shall prevent the parties from mutual consent arbitration, and if the parties agree to arbitration, it shall be mutually in writing, and the following steps shall be followed:
"(a) The parties shall attempt mutually to select an arbitrator. In the event they cannot agree upon an arbitrator within five (5) days, then an arbitrator shall be selected by the American Arbitration Association in accordance with their rules.
"Ob) Any arbitrator selected shall have only the function to interpret the agreement, and shall not add to nor subtract from. The fees and approved expenses of the arbitrator will be borne equally between the parties.
"(c) There shall be no appeal from any arbitrator’s decision. Each such decision shall be final and binding on the Union, and its members, the employee or employees involved, and the Employer.”
Plaintiff testified at trial:
"Q. [by Defense Counsel]: And to the best of your memory, you were not present in the auditor’s office in February of 1973 at the time your grievance was being considered by me?
"A. [by Plaintiff]: Not that I recall, no.
"Q. I wonder if it would refresh your memory any to call to your attention the fact that you were called in' by Mr. Musgrove and Mr. Smith while the grievance was being considered and you read some charges that had been prepared from the Sheriff’s notes having to do with your alleged misconduct?
"A. I remember something to that effect, yes.
"Q. And you, in company with Mr. Musgrove, took a caucus or recess for the purpose of giving you an opportunity to read those allegations, isn’t that true?
"A. Yes, that’s right.
"Q. So that now that your memory is refreshed, you do remember that you participated at least to that extent in that phase of the disposition of the grievance, is that right?
"A. Yes.
"Q. And do you now remember that after you had read those allegations by the Sheriff, that you refrained from making any comment in opposition to the charges by the Sheriff?
"A. That’s correct.”
77 Mich App 145; 258 NW2d 168 (1977).
"On order of the Court, the application for leave to appeal is considered, and it is granted, limited to these questions: (1) can the Court of Appeals decision in this case (77 Mich App 145 [1977]) be reconciled with this Court’s decision in Council No 23 v Recorder’s Court Judges, 399 Mich 1 (1976); and (2) if the sheriffs authority under MCL 51.70; MSA 5.863 takes precedence over the collective bargaining agreement between the deputies and the county, is that authority absolute, or, are there safeguards which attach?” 402 Mich 881 (1978).
Sections 4 and 5 of the act provide a detailed mechanism for constituting a three-member arbitration panel whose impartial chairman is selected from a list of nominees provided by the Employment Relations Commission. MCL 423.234; MSA 17.455(34), MCL 423.235; MSA 17.455(35). Section 7a, added by 1972 PA 127, permits the chairman to "remand the dispute to the parties for further collective bargaining for a period not to exceed 3 weeks”. MCL 423.237a; MSA 17.455(37a).
See paragraphs 3-4 of the plaintiffs amended verified complaint. In Local 1518, AFSCME, AFL-CIO, Michigan Council 55 v St Clair County Board of Comm’rs, 43 Mich App 342; 204 NW2d 369 (1972), the Court of Appeals ordered enforcement of an arbitrator’s decision providing for compulsory grievance arbitration as part of the prior contract. However, such a provision was not included in the negotiated contract under which this dispute arose.
1977 PA 303 added the words "except a dispute concerning the interpretation or application of an existing agreement (a 'grievance’ dispute)”.
"We find that, while the trial court correctly applied Act 312 to contract negotiation disputes as well as to contract grievance disputes, its holding that Act 312 preempts any collective-bargaining contract provision for arbitration was erroneous.
"A reading of the statute and relevant cases * * * requires our holding that the procedure set forth in Act 312 is not exclusive and does not preempt contractual provisions for arbitration. The purpose clause of the act itself, describes the arbitration mechanism as an 'alternate ’ * * procedure’, not as the exclusive procedure. Further, § 3, by its terms, is not mandatory. It provides that, if the parties to mediation cannot agree after 30 days, 'the employees or employer may initiate binding arbitration proceedings’. MCL 423.233; MSA 17.455(33). (Emphasis supplied.) Surely, if the Legislature had intended Act 312 to be exclusive and mandatory, it would not have drafted it in such permissive form. Equally as important, this Court has interpreted Act 312 not only to allow parties to contract for their own nonstatutory arbitration procedure but also to give priority to the contractual procedure over the Act 312 procedure.” McKervey, supra, 692-694.
MCL 423.233; MSA 17.455(33), which at the time provided:
"Whenever in the course of mediation of a public police or fire department employee’s dispute, the dispute has not been resolved to the agreement of both parties within 30 days of the submission of the dispute to mediation and fact-finding, or within such further additional periods to which the parties may agree, the employees or employer may initiate binding arbitration proceedings by prompt request therefor, in writing, to the other, with copy to the labor mediation board.”
1977 PA 303 amended the previous language by adding after "employee’s dispute”, the words: "except a dispute concerning the interpretation or application of an existing agreement (a 'grievance’ dispute)”. | [
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Sharpe, J.
Defendant, Laura H. Cristy, owner of parcel No. 25 appeals from an award made in condemnation proceedings in the recorder’s court of the city of Detroit to appropriate property as a site for the Memorial Hall.
The property owned by defendant has been used as a parking lot in ■ conjunction with other parcels of land. The assessed valuation of this parcel prior to 1935 was $13,600; from 1936 to 1938 it was $11,370, and from 1940 through 1945 it was $6,830. During the trial, defendant offered in evidence the assessment rolls of the city of Detroit ior the year 1945 for the purpose of showing that the assessed valuation of parcel No. 25 was $6,830. The trial court refused to admit this evidence. The jury returned a verdict in favor of defendant in the sum of $3,250.
A motion for a new trial was filed by the property owner alleging error upon the part of the trial' court in refusing to admit evidence of the 1945 assessment rolls of the city of Detroit. The motion for a new trial was denied and defendant appeals.
The principal question involved in this case relates to the refusal of the trial court to admit the proffered evidence. This is a case of first impression in this State. A decision, hearing some relation to the question involved here, was had in Chamberlin v. Wagar, 272 Mich. 594. In that case the receiver of a hank brought suit against a stockholder to set aside an assignment of his interest in a copartnership. The question involved in this case was the market value of certain parcels of real estate during a certain year. In commenting upon the evidentiary value of the assessed valuation of the property, we said:
“While the amount property is assessed at is not determinative of its true worth, it nevertheless has some probative force.”
The city of Detroit urges that the better rule and weight of authority is that assessments of property by tax assessors for the purpose of taxation are not admissible in eminent domain or condemnation proceedings as evidence of the fair market value of the property and cites Johnson & Wimsatt, Inc., v. Reichelderfer, 60 App. D. C. 186 (50 Fed. [2d] 336), where it is said:
“It is widely recognized that appraisements of property by tax assessors for purposes of taxation are not reliable guides of market value, and consequently not admissible in condemnation proceedings. ’ ’
The following decisions are in accord with the above rule: Kansas City & G. R. Co. v. Haake, 331 Mo. 429 (53 S. W. [2d] 891, 84 A. L. R. 1477); People v. Stevens, 358 Ill. 391 (193 N. E. 154); Mayor & City Council of Baltimore v. Himmel, 135 Md. 65 (107 Atl. 522); Allard v. La Plain, 125 Me. 44 (130 Atl. 737); Burlison v. Watson, 137 Okla. 43 (278 Pac. 328); Yolo Water & Power Co. v. Edmands, 50 Cal. App. 444 (195 Pac. 463); Bankers Trust Co. v. International Trust Co., 108 Col. 15 (113 Pac. [2d] 656); and Vineyard Grove Co. v. Oak Bluffs, 265 Mass. 270 (163 N. E. 888).
In some jurisdictions the rule is well settled that evidence of assessed valuation is admissible against the owner. In Joyce v. Dallas County (Tex. Civ. App.), 141 S. W. (2d) 745, it was held that the tax assessment sheet for the year 1935 was admissible in evidence in a proceeding by a county commenced in 1939 to condemn a right of way. In City of New Orleans v. Larroux, 203 La. 990 (14 South. [2d] 812), it was said:
“While the assessed value of the property is not controlling, yet, it should he considered in connection with the other evidence in the case in arriving at the market value of the land. ’ ’
In Commonwealth, by State Highway Commission, v. Combs, 229 Ky. 627 (17 S. W. [2d] 748), it is said:
“But, independently of the foregoing authorities, and viewing the question as one of first impression in this jurisdiction, we would feel compelled to hold that an assessment made by the owner, as is required by our assessment statutes, would he competent in a case like this, and under its circumstances and conditions. It will be observed that, when defendants ^ listed their entire farm and fixed a'value thereon, it was done solely for the purpose of measuring the amount of their contribution to he paid by them to the general fund of the county and State for public purposes. One of the public purposes to which the county fund so contributed by defendants must he applied under the provisions of section 4356t7 of our statutes was and is the cost of acquiring rights of way for the construction of State highways through the several counties. It would be extremely unfair to say that defendants, after fixing themselves the value of their farm so as to reduce their taxes (being their contribution to the public treasury) should not be confronted therewith when they seek to take from that fund the damages to the same property resulting from appropriating a small fractional part, thereof for the public purpose of constructing a highway. At first blush it would appear to be unfair and inequitable to allow them, under such circumstances, to take such diamet7 rically opposed position affecting the public treasury. But, be that as it may, it is sufficient for the purposes of this case to say that the testimony was competent and that the court erred in rejecting it.”
In Duggan v. State, 214 Iowa, 230 (242 N. W. 98), it was held that assessment rolls when signed by the property owner were admissible in evidence. In Golden City Park Corp. v. Board of Standards and Appeals, 29 N. Y. Supp. (2d) 837, involving the removing of buildings from land sold to the city, it was there said:
“The city ought never to be in the position of' fixing a price for taxes and then denouncing the price when it is used for condemnation. ’ ’
In Re Parkside Housing Project, 290 Mich. 582, 588, we said:
“The law contemplated that the practice respecting the admission of testimony in such proceedings should be as simple as a due regard to substantial justice would permit. A large discretion is left to the jury or to the attending officer, where there is one, and on appeal an • award will not be disturbed unless it is fairly evident that his rulings were not only inaccurate, but were a cause of substantial in justice to the appellant. Michigan Air Line Ry. v. Barnes, 44 Mich. 222.”
In condemnation proceedings a jury may view the premises as an aid in determining value. Greater latitude is allowed in permitting the reception 'of evidence hearing upon the value of property than is permitted in the ordinary case tried before a judge and jury. In the case at bar the city made the assessment and is a party to the litigation. We think the evidence was admissible. It is not controlling, but may be considered in connection -faith all other evidence in arriving at the fair market value of the land. The failure to admit this evidence was prejudicial error and commands a new trial.
The award is set aside and a new trial granted, with costs to defendant.
Butzel, G. J., and Caer, Bushnell, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Per Curiam.
At the defendant’s trial on a charge of first-degree criminal sexual conduct, the trial judge permitted, over defense counsel’s objection, prosecutorial cross-examination of defendant’s brother about defendant’s alleged attempt to bribe a prospective witness in an unrelated criminal charge against the brother. The prosecutor was also allowed to elicit rebuttal testimony from the complainant that the defendant’s brother had threatened her sister’s life and stated that he would try to get complainant fired from her job unless she dropped the charge. We find that these inquiries violate evidentiary rules relating to relevance and rebuttal testimony. We reverse the defendant’s conviction of first-degree criminal sexual conduct, which was affirmed by the Court of Appeals, and remand for a new trial.
The complainant, her boyfriend, and defendant’s brother all worked together in Cedar Springs. At trial, complainant testified that she was raped by defendant Keith Shelden at the house of defendant’s brother on the afternoon of July 25, 1977. The record indicates that the trial became a credibility contest not without some mudslinging by both sides.
Defendant’s brother testified that on the evening of July 25, the complainant called him and offered to drop the charges against the defendant in exchange for $5,000. In an effort to discredit the testimony of defendant’s brother relating to the alleged extortion attempt by the complainant, the prosecutor, over defense counsel’s objection, cross-examined defendant’s brother about an alleged attempt that the defendant had made to bribe a prospective witness in an unrelated criminal charge against the brother. In pursuing this matter, the assistant prosecutor asked the following questions:
"Q. Who is Sharon Knox?
"A Sharon Knox. I think she is a cousin of mine.
"Q. Well, why did you have to look? You knew she was a cousin?
"A I couldn’t place the last name.
"Q. Okay. Sharon Knox lived where in about 1973?
"A. In Illinois.
"Q. Isn’t it a fact that your brother, Keith, offered her $500 in your trial to testify when you were being charged and on trial for safecracking, that your brother, Keith, the defendant in this case, offered her, Sharon Knox, $500 to say that you and he were, or whoever else, at a party in Chicago, Illinois, isn’t that a fact?
"A. Not that I know of, because she was never at my trial.
"Q. She was never at your trial?
"A. No, sir.
"Q. Did you hear about that?
"A. I don’t recall, sir.
"Q. Something like that you would remember?
"Mr. Dodge [Defense Counsel]: Excuse me. Just a minute, Mr. Zerial. Could we approach the bench at this point, please?
"The Court: You may make an objection if you want.
"Mr. Dodge: I would object to it. I don’t see any relevance.
"Mr. Zerial [Assistant Prosecutor]: I think it’s entirely relevant because this man is contending that it’s the other people making the bribe when, in fact, we can show the credibility of this witness and the fact of a history.
’’The Court: The objection is overruled.
”Q. (Mr. Zerial): Now you heard about that, did you not?
”A. I have heard something on it, yes.
"Q. You heard it before I just mentioned it today, didn’t you?
”A. Yes.
”Q. And, in fact, Sharon Knox was supposed to, I say supposed to, have gotten an offer or bribe or whatever for $500 from your brother, Keith, to say that you and whoever else were at a party in Chicago, Illinois, on the date and time of the burglary of the safe vault, whenever that was supposed to have happened, isn’t that a fact that you have heard that?
"A. I heard it, but Sharon Knox denied it she told me.
”Q. Again, you are under oath, and Sharon is not here, but she was supposed to be an alibi witness for you, is that correct?
”A. No, sir.”
We believe that the trial court erred in overruling defense counsel’s objection on relevancy grounds to this line of inquiry and in permitting further inquiry. It was clearly improper for the prosecutor to attempt to impeach the credibility of a witness by confronting the witness with a rumor of a third person’s alleged bad act. This tactic was particularly egregious in view of the fact that the other person involved in the attempted bribe was the defendant in the instant case. In a case such as the instant one, turning largely on the credibility of the witnesses, we do not believe that it was harmless error to allow this prejudicial innuendo to be placed before the jury.
A defense witness testified thát complainant’s boyfriend had threatened to "put a contract” out on the witness if she testified for the defendant. On rebuttal, the prosecutor, over defense counsel’s objection, elicited testimony from the complainant that the defendant’s brother had threatened that "he would bring up my past history and try to get me fired from my job” and would "send a motorcycle gang after” the complainant’s younger sister who was at home alone while their mother worked. We find this testimony to have been improper. Since no connection to the defendant was indicated by the testimony, it was lacking in probative value. Moreover, the testimony was beyond the scope of proper rebuttal. The rebuttal testimony did not disprove prior testimony of a witness, nor did it refute evidence bearing on an issue properly raised in the case. See People v Quick, 58 Mich 321; 25 NW 302 (1885); People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974), and People v Bennett, 393 Mich 445; 224 NW2d 840 (1975).
Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and of the Kent Circuit Court and remand the matter for new trial.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
MCL 750.520b; MSA 28.788(2).
See MRE 401 and MRE 402.
We note that this testimony indicates that the defense engaged in the same improper tactic utilized by the assistant prosecutor which we disapproved of above. | [
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O’Hara, J.
This is an appeal from a decision of the Court of Appeals affirming judgment non obstante veredicto for defendants Ernest Brown and Edna Brown.
Stanley D. Muma is a minor. At tbe time he sustained the injuries for which these suits were brought, he was 3 years old.
Larry Brown at the time of the occurrence of the events complained of was 14 years old. Ernest and Edna Brown are his parents. Stanley E. Muma is the minor plaintiff’s father. Guardian Betty Muma is his mother. Two actions were instituted; one was by the injured minor’s father, the other by the guardian. They were consolidated for trial and submitted to the jury on 2 special questions, which are here set forth:
“1. Did Larry Brown have the implied consent of his parents Ernest and Edna Brown to drive their Dodge car on August 16, 1957, the day of the accident?
“2. Did the parents of Larry Brown fail to supervise him on the day of the accident?”
To question number 1, the jury answered “no.” To question number 2, it answered “yes.” It re turned a verdict for $5,668.55 for medical expense and $7,000 for general damages against both the minor driver and Ms parents.
This case was tried in February, 1962, prior to the adoption of the revised judicature act. The special question procedure was controlled by CL 1948, § 618.39 (Stat Ann § 27.1019), which provided:
“In all cases where an issue of facts is tried before any court of record, the court shall at the request in writing, of the counsel of either party, instruct the jury if they return a general verdict, also to find upon particular questions of facts, respecting which the issue is joined, to be stated in writing, and shall direct a written finding thereon: Provided, Such special questions shall not exceed 5 in number, and shall be each in single, short sentences, readily answered by yes or no. The special verdict, or finding, shall be filed with the clerk, and entered upon the minutes, and when any special finding of facts shall be inconsistent with a general verdict, the former shall control the latter, and the court give judgment accordingly.”
We must apply the statute and the case precedent interpreting it to the case at bar. The first special question was directed to the liability of the defendant parents under the Michigan motor vehicle ownership statute. That statute renders the owner of a motor vehicle liable for its negligent operation by another, if such operation is with the express or implied knowledge or consent of the owner. Additionally, it provides that where the operation is by a son of the owner as here, there is a presumption that such operation is with the owner’s knowledge and consent. This, however, is a rebuttable presumption. Fob an extended discussion of the nature of the presump tion and the evidence necessary to overcome it, see Krisher v. Duff, 331 Mich 699.
Knowledge and consent having been placed in issue and evidence bearing on that issue being in conflict, a fact question for the jury arose. On this issue the jury held with the defendants. The negative answer to the first special question exculpated the parents from the statutorily imposed liability.. This finding was at variance with the general verdict against them. Under the settled law as of the time • of trial, clearly the statute and the cases mandate . that the special findings control the general verdict. • This precedent has been settled since as early as Cole v. Boyd, 47 Mich 98. Manifestly we must apply it. Thus, under the statute the parents did not become liable for the negligent operation of the motor vehicle by their son.
Plaintiffs further declared on the theory that the parents having absented themselves from the family home for a weekend, leaving the minor son unsupervised and a set of car keys available, became liable for-his negligent operation of the automobile under common law. This theory also became the subject of special question number 2, earlier set forth. To this question the jury answered “yes.” Thus, there was no variance between the answer to the second special finding and the general verdict. The question therefore becomes whether plaintiff’s judgment on this theory was supported by proof. On this issue the trial court held :
' “The court feels' that it would be stretching the common-law theory of parents’ liability for failure or lack of parental supervision, if the judgment or verdict rendered against the defendants, insofar as the defendants Ernest Brown and Edna Brown are concerned, was permitted to stand. To say that the defendants Ernest Brown and Edna Brown were negligent, arid that their negligence was the proxi mate cause of the injuries complained of, would in the court’s opinion, be against the great weight of the testimony in this case. The testimony in the record in this case shows that the defendant Larry Brown was denied permission to use the family automobile, and there was no testimony showing that he did use it on any other occasion, than on the láth and 15th day of August! 1957. That prior to leaving for the weekend, the father Ernest Brown placed the automobile in the garage, which garage had no door on it, that he locked the ignition and the four car doors. That there is nothing in the record to show that the defendant Larry Brown knew where the mother’s keys were in the house. There is nothing in the record to show that the defendant Larry Brown was known to be reckless and incompetent. In this case, if the Court should agree with the plaintiff’s common-law theory, then it wouldn’t be safe for a parent to leave home, and leave your automobile while your minor child was home.
“Therefore, it is the decision of this court, that the motion non obstante veredicto should be granted insofar as the defendants Ernest Brown and Edna Brown are concerned, and that the motion as far as it applied to the defendant Larry Brown will be denied, and that the motion for a new trial as far as it applies to defendant Larry Brown will be denied.”
On review the Court of Appeals held:
“We are forced to look outside of our jurisdiction for guidelines in determining this issue of parental supervision.”
The question being one of first impression and of major significance, we granted leave. The reasoning of the Court of Appeals was as follows (pp 379, 380):
“It is evident then, that to impose liability on the parents for a negligent act of their child, the general rules of negligence must be applied. Thus, there must be some act of the parents that was the proximate cause of the injurious or damaging act. Further, the specific act of the child must be such that it was foreseeable by the parents. As to the question: Is lack of supervision actionable negligence? The rule is clearly stated in 67 CJS, Parent and Child, § 68, at 799, 800:
“ ‘In order to render a parent liable his or her negligence in the exercise of parental supervision must have some specific relation to the act of which complaint is made, and liability may not be predicated on a failure to supervise where supervision would not have rendered the parent aware of the possibility of tortious conduct of the child.’
“In the case at bar, defendant minor had never taken the car before without his parents’ consent. In fact, the only time he had ever driven it was with his father’s consent once in a gasoline station and a few times up and down the driveway.
“He did drive it the day before the accident, but this was after his parents had left for the weekend. Therefore, the defendant-parents could not have anticipated or foreseen that their son would take the car while they were away since he had never done so before. Whether the parents were remiss in their duty by leaving their 14-year-old boy home unsupervised for a 3-day weekend is not the question here. What the boy did, could have been done while he was left alone at home for a few hours.
“Since the law as stated above stresses foreseeability as a prerequisite to a finding of actionable negligence in cases of lack of parental supervision, and we find no such foreseeability here, we hereby affirm the lower court’s judgment.”
We agree in substance with the finding. Specifically, we hold that parental liability can attach in cases where a family-owned motor vehicle is operated by a child without the express or implied knowledge or consent of the parent owners, by reason of failure in the exercise of parental supervision. Such liability is predicated on the judicially knowledgeable fact as well as the settled law that an automobile in the hands of an unlicensed, inexperienced operator can be a dangerous instrumentality. Thus, if a parent knows, or could reasonably be expected to know, that an inexperienced minor operator over whom he can exercise supervision and control will undertake to operate a motor vehicle, the availability of which to such inexperienced driver is also under the control of the parent, the parent is under obligation to exercise a high degree of care to render the vehicle unavailable to the child. We are fully cognizant of the gravity of this parental responsibility. We of necessity equate it with danger to society arising by reason of the operation of motor vehicles by inexperienced minors. We would not be understood to mean that any time a minor unauthorizedly operates a motor vehicle owned or controlled by his parents, the parents become liable for the minor’s tortious act. We stress, as did the trial court and the Court of Appeals, the reasonable foreseeability of the exigency. In the case at bar there was only the skimpiest evidence, if any, of previous unauthorized operation of the family car by the son.
On a motion for a directed verdict, or judgment non obstante veredicto, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the party against whom' the verdict was directed, or against whom judgment was entered notwithstanding the verdict. Fitzpatrick v. Ritzenhein, 367 Mich 326 (p 329).
So viewed the evidence here established nothing-more than the average interest of a minor in things mechanical and the almost universal impatience of the teenager to drive the family car. There is a vast difference between a request or desire to drive and a pattern of unauthorized driving. The latter should reasonably alert the parents to the likelihood that the minor would drive the car in their absence.
We are constrained in the factual context of this ease to affirm the Court of Appeals. Costs to the defendants Ernest and Edna Brown.
Dethmers, C. J., and Kelly, J. concurred with O’Hara, J.
Black, J., concurred in the result.
CLS 1961, § 257.401 (Stat Ann 1960 Bev § 9.2101,)
See Cobulak v. Lewis, 320 Mich 710, 722, 723 (5 ALR2d 186.) | [
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Carr, J.
While roller skating in a rink owned and operated by defendant corporation in the city of Detroit, plaintiff ■ fell and sustained serious injuries. The accident occurred September 1, 1942. Plaintiff testified that, while making a turn on the floor of the rink his right skate was “ticked” or “clipped” by another skater and that as a result his skates became locked with his right foot and skate behind his left skate. Plaintiff further claimed that he was an expert skater; that he had for some time acted as instructor in roller skating in a skating rink in the south; that on many prior occasions his skates had locked in like manner; and that the proper procedure to prevent falling was to go into a “spin” and partial crouch. It was plaintiff’s testimony further that he undertook, on the occasion in question, to execute this maneuver in order to save himself from injury, but did not succeed in doing so because his left skate struck a ridge or inequality in the floor of the rink and was thereby prevented from turning.
This building was not originally constructed as a roller skating rink. The floor, 80 by 280 feet, was paved with concrete. To prepare it for roller skating, a maple floor, built in sections 4 by 12 feet, was placed on the concrete. Said sections were made by nailing %-inch hard maple boards, approximately 2 inches in width, to 2 x 4’s, 18 inches apart. When the sections were fitted together they were compacted by wedges at the sides and ends of the floor. As a matter of regular practice the skqting floor, thus prepared, was sanded each Monday during the roller skating season for the purpose of removing slippery spots. Plaintiff testified that, at the spot where he fell, there was an inequality of approximately an inch where sections of the floor were joined and that the board in the floor seemed splintered. It was his claim in substance that this condition caused the fall resulting in his injuries.
The case was tried before the court without a jury. Following the opening statement of counsel for plaintiff, defendant moved for judgment in its favor on the ground that if plaintiff produced the evidence indicated by such statement it would not be sufficient to support recovery. A similar motion was made at tbfe conclusion of plaintiff’s proofs, based on their alleged insufficiency. The court took the motion under consideration and subsequently, January 15, 1945, filed a written opinion holding that plaintiff was entitled to recover damages. Judgment in plaintiff’s favor in the sum of $8,000 was entered on the same day. February 2d, following, defendant filed a motion for the entering of judgment in its favor and in the alternative for a new trial. This motion was denied and defendant has appealed.
On the trial defendant offered the testimony of two of its employees who claimed the floor was in perfect condition and that they did not find any ridge or inequality in it, as claimed by plaintiff. The conflicting testimony on this point presented an issue of fact which the trial court determined in favor of plaintiff, stating in this connection, “this ridge did precipitate the plaintiff to the floor as he was trying to execute this spiral turn for the purpose of coming out of the tripping from behind without sustaining a fall.” The trial court further determined that defendant was guilty of negligence because of failure to maintain its floor in proper condition. Such holding is clearly supported by the record. Plaintiff was an invitee and, while defendant was not an insurer of his safety, the duty rested on it to maintain its floor in a reasonably safe condition for the purpose for which it was used. Nezworski v. Mazanec, 301 Mich. 43.
Defendant’s contention that judgment should-have been entered in its favor is based principally on the claim that the negligence of defendant was not the proximate cause of the accident. It is 'argued that defendant merely created a condition and that plaintiff’s fall was the direct result of the act of the other skater who came in contact with plaintiff. Defendant assumes that such third party was guilty of an assault on plaintiff or, at least, of negligence. The proofs, however, do not justify any such assumption. The “clipping” or “ticking” of plaintiff’s skate may have been wholly accidental. Defendant’s contention also overlooks the fact that the case was tried and decided in the circuit court on the theory that plaintiff fell because his skate came in contact with the ridge in the floor, which theory found support in plaintiff’s testimony.
Tn view of the factual situation here the case of Wiles v. Railroad Co., 311 Mich. 540, is in point. There an automobile in which plaintiff was riding was struck by another car, the driver of which had, it was claimed, swerved to his left in order to avoid contact with box cars that defendant railroad company was propelling over a crossing. It was contended that the negligence of the defendant company was not the proximate cause of the. accident, but rather that the act - of the driver of the car that struck plaintiff’s vehicle was, in fact, the proximate cause. In deciding against such contention it was said: •
“In this contention defendant railroads overlook the established rule that- the negligence of two or more defendants may be cooperating and concurrent .proximate causes of an accident and resulting injuries. That is to say, if the railroads were negligent and their negligence continued until the time of the accident, the intervening negligence of defendant Hunt would not relieve them from liability.”
The court cited with approval Bordner v. McKernan, 294 Mich. 411, where it was said:
“With regard to the contention that the .negligence of Quinn was the sole cause of the accident, it is to be remembered that there may be more than one proximate canse of the same injury. Assuming that Quinn was negligent in running into the taxicab and that the injuries would not have resulted without such negligence, it is clear that Bentley’s negligence may also have been a proximate cause, and that the two negligent acts may have been cooperating and concurrent.”
See, also, Reed v. Ogden & Moffett, 252 Mich. 362; Camp v. Wilson, 258 Mich. 38; Murphy v. Sinen, 281 Mich. 274; Gleason v. Hanafin, 308 Mich. 31.
The case of Gage v. Railroad Co., 105 Mich. 335, is also in point. There plaintiff was riding in a sleigh which, because of the shying of the horse, went over an embankment. Plaintiff was injured and brought suit against the railroad company on the theory that its failure to maintain proper,barriers along an approach to a bridge constructed by the company across a cut made by it in establishing a grade separation constituted negligence. It was contended by defendant that the proximate cause of the injury was not the absence of harriers but rather the shying of the horse. It did not appear, however, that the horse was not under reasonable control of the driver at the time. Citing the earlier decision in Langworthy v. Township of Green, 95 Mich. 93, the Court said: .
“It cannot he said, as a matter of law, that the mere shying of the horse, and not the improper and dangerous condition of the highway, was the proximate cause of the injury. They were apparently concurring causes,- — the. one, the shying of the horse, where neither party can be said to be in fault; and the other, the defect in the highway, for which, under the finding of the jury, the defendant company is responsible.”
In 2 Restatement, Torts, p. 1184, § 439, it is said:
“If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious or criminal act, is also a substantial factor in bringing about the harm does not protect the actor from liability.”
Likewise, in 38 Am.- Jur. pp. 715, 716, the following statement is made:
“Under the rule that the court will trace an act to its proximate, and not to its remote, consequences, there may be two or more concurrent and directly cooperative and efficient proximate causes of aii injury. Negligence which was operative at the time an injury was inflicted may constitute the proximate cause of the injury and be actionable, notwithstanding it concurred with the act of a third person to produce the injury. One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the act of a third person may have contributed to the final result. For example, one negligently handling petroleum products without license in a city is liable for injury done to neighboring property by an explosion, although the act of a third person cooperates to produce the injury. Since a concurring cause may be a proximate cause, the rule is that one is liable to respond in damages for an injury which was the natural and probable result of the concurrence of his negligence with the negligence of another, or with an act of Grod or pure accident, or with an inanimate cause, notwithstanding his lack of responsibility for the other cause.”
Counsel for defendant calls attention to the cases of Dawson v. Postal Telegraph-Cable Co., 265 Mich. 139, and Frye v. City of Detroit, 256 Mich. 466. These decisions are distinguishable from the case at bar on the facts involved. In the Dawson Case plaintiff was riding in. an automobile which was forced to leave the traveled portion of the road to avoid a collision with a truck which made a left turn without any warning signal. Plaintiff’s vehicle ran into a pile of poles, belonging to defendant company, lying on the untraveled portion of the highway. under the circumstances involved it was held that defendant’s act, even if negligent, was not the proximate cause of the accident. It was there said:
“Defendant could not have foreseen a collision of this kind resulting from an act .of negligence by another party, forcing the car in which plaintiff was riding to leave the main portion of the road.”
In Frye v. City of Detroit, supra, plaintiff’s decedent was struck by an automobile on a public street in the city of Detroit, and thrown upon the streetcar tracks of defendant city, where he was struck by a streetcar. Death resulted within a few minutes. It was held that plaintiff could not recover because the proofs’failed to show whether the fatal injuries were inflicted by the streetcar or by the automobile. Commenting on this situation it was said:
“It was necessary for plaintiff to submit proof, from which the jury could draw the reasonable inference that the death of plaintiff’s decedent would not have occurred but for the negligence of defendant city.”
The language quoted clearly implies that, had the proofs established defendant’s negligence and that such negligence caused the death, the act of the driver of the automobile in question would not have been a bar to recovery.
Defendant also cites decisions from other states, including Seith v. Commonwealth Electric Co., 241 Ill. 252 (89 N. E. 425, 24 L. R. A. [N. S.] 978, 132 Am. St. Rep. 204) and Steenbock v. Omaha Country Club, 110 Neb. 794 (195 N. W. 117). In the Illinois case an electric wire, maintained by defendant, was lying on the ground. It was the claim of the plaintiff that a third person threw or knocked this wire against plaintiff, causing the injury. The facts in this case are obviously not similar to those involved in the case at bar. The decision in the Nebraska case is also distinguishable on the same basis.
We think that the decisions of this court above referred to leave no question as to the established rule in Michigan. Defendant is not* absolved from liability for its negligence because of the act of the 'other skater referred to in “ticking” or “clipping” plaintiff’s skate. The proofs support the conclusion of the trial court that plaintiff fell because of the roughness of, or the inequality in, the floor of the skating rink. Defendant’s negligence, if not the sole proximate cause of the accident, was, in any event, a proximate cause.
Under the testimony the question as to whether defendant’s negligence was a proximate cause of the accident was one of fact. As such it was for the determination of the trial court. In determining the matter he had the advantage of seeing the witnesses and hearing them testify. In consequence, he was in better position than is this Court to judge of their credibility. As stated in Rose v. Paint Manufacturers, Inc., 311 Mich. 428:
“At the outset the defendant is confronted with the rule that in a law case tried by the court without a jury we do not reverse unless the evidence clearly preponderates in the opposite direction.!’
See, also, Vannett v. Michigan Public Service Co., 289 Mich. 212; Allen v. Kroger Grocery & Baking Co., 310 Mich. 134; McKenna v. New York Life Ins. Co., 314 Mich. 304. In the case at bar it cannot be said that the evidence “clearly preponderates” against the finding of the trial court of which defendant complains. '
This brings ns to the question whether defendant’s motion for new trial was properly denied.' Said motion was based on the claim that the verdict was against the weight of the evidence, that the trial court erred in refusing defendant’s request for an adjournment until the following day in order that a building inspector for the city of Detroit, who made an examination of the floor of the skating rink 16 days after 'the accident, might be produced in court, and that defendant’s request for a continuance in order to take the deposition of a witness residing in West Virginia .was improperly denied. Apparently it was desired to use the testimony of the witness last referred to, Ross A. Brink, in order to impeach plaintiff’s testimony. On the hearing of the motion for new trial both of the parties referred to appeared before the court and were examined. Thereupon the court concluded that defendant might have taken the deposition of Mr. Brink in advance of the trial, and that the testimony of the inspector was, at most, merely cumulative to that given by other witnesses who testified in defendant’s behalf on the trial.
Under the circumstances it cannot be said that the trial court abused his discretion in refusing a new trial. The declaration filed in the case set forth plaintiff’s claims and counsel for defendant' should have anticipated that testimony would be offered to support such claims. Apparently defendant knew before the trial that Mr. Brink had discussed the accident with plaintiff. ■ In view of the situation the testimony of Mr. Brink, if thought material, should have been seasonably procured in order that it might be offered in defendant’s behalf. The testimony of the city inspector, as given, on the hearing of the motion, was, as the trial court found, merely cumulative. The claim that the verdict was against the weight of the evidence has been sufficiently covered in the discussion of the principal issue involved. The trial court was not in error in denying the motion for new trial, Finch v. W. R. Roach Co., 299 Mich. 703.
The judgment is affirmed, with costs to appellee.
Btttzel, C. J., and Bitshnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Per Curiam.
This case was due for submission on October 6, 1966. On September 28, 1966, copies of a letter addressed to the Court by defendant were delivered to the Justices, as a result of which the clerk was directed to advise counsel that the appeal had been stricken from the list of cases to be argued and that a special order would be forthcoming.
Defendant’s said letter is highly critical of his court-appointed counsel. In lesser degree, it is critical of the trial judge. The letter concludes:
“I at this time request that your honor hold judgment on my case until I can be appointed new counsel to defend me to the point that I might be able to present an appeal to the court that will merit consideration to the facts as they truly are. I also ask that your honor release Mr. James Renfrew from my case and order new counsel to represent me in,this matter.”
The defendant, 16 years old at the time of homicide and” jury trial for first-degree murder, elected to plead guilty during the trial to second-degree murder.' The trial judge accepted the plea after having made a record which, on the face thereof, seems to have fully justified such acceptance. In the absence of the jury defendant’s counsel opened the subject with these words: ,
“Mr. Renfrew: If the court please, a few moments ago, my client had suggested that he might he willing to enter a plea. With the court’s permission, and after consulting with Mr. Lang, I have discussed the possibilities of his. doing so with the defendant himself, with his mother and with his grandmother. This is a decision about which there might be some trepidation on the part of counsel, were it not for the fact that the defendant’s intelligence, understanding of his situation are such that I can honestly state to the court he fully understands the nature of his entering a plea here.
“I have advised him that I am duty bound to proceed if it is his desire; that he has the right additionally to have his case tried to the uttermost before a jury. Notwithstanding the advice which I have given him as to his constitutional rights, I am instructed by the defendant without any pleas',- without any coercion, without any inducement whatever to state to the court that he desires to plead guilty to murder in the second degree.”
The defendant, however, now makes charges against counsel and court which cannot receive proper consideration excepting upon motion for new trial. Another question, whether a statutory sanity hearing should have been conducted before trial, deserves attention on like motion. The record accordingly is remanded to the Oakland, circuit with instruction that new counsel be appointed for the defendant; whereupon such counsel will proceed by motion for new trial with presentation of all questions which, to such counsel, appear proper and due in defendant’s behalf. The circuit court will ..grant or deny such motion as to that court may appear right and just; whereupon defendant may have appeal as a matter of right should denial be ordered.
Nothing set forth in this order should be construed as critical of present court-appointed counsel, or of the trial judge. Such counsel has signified to us, through the trial judge, desire that he be relieved and that new counsel be appointed in his stead.
T. M. Kavanagh, C. J., and Dethmers, Kelly, Black, Souris, Smith, O’Hara, and Adams, JJ., concurred. | [
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Ryan, J.
These two cases were consolidated for the purpose of hearing and decision. They involve the validity of certain tax exemption certificates issued by the State Tax Commission to Consumers Power Company covering both air pollution and water pollution control facilities located at the Palisades Nuclear Power Plant in Covert Township, Van Burén County.
In 1968, Consumers applied to the tax commission for tax exemption certificates pursuant to MCL 336.1 et seq.; MSA 7.793(1) et seq., hereafter the Air Exemption Act, which provides for the exemption of air pollution control facilities from certain taxes. The application sought exemption for the containment building which houses the nuclear reactor at the power plant, the building’s spray system, the building’s cooling system and the facility’s gaseous radioactive waste (radwaste) system.
In 1972, Consumers applied to the tax commission for tax exemption certificates pursuant to MCL 323.351 et seq.; MSA 7.793(51) et seqhereafter the Water Exemption Act, which provides for the exemption of water pollution control facilities from certain taxes. These applications sought exemption for the power plant’s liquid radioactive waste (radwaste) system and water cooling towers.
The commission granted each of the exemptions.
Following this action by the commission, the Covert Township assessor pursued various administrative actions and judicial proceedings, chal lenging the exemptions. The circuit court finally affirmed the commission’s grant of the tax exemption certificates. The Court of Appeals affirmed the tax exemption for the air pollution control facilities, but reversed as to the tax exemption for the water pollution control facilities. Covert Twp Assessor v State Tax Commission, 77 Mich App 626; 259 NW2d 164 (1977).
We granted leave to appeal. 402 Mich 882; 262 NW2d 298 (1978). We affirm.
I. Air Pollution Control Facilities
We granted leave to appeal on two specific questions concerning the exemptions for the air pollution control facilities:
"(1) [W]hether tax exemption can be granted pursu ant to 1965 PA 250 as amended [the Air Exemption Act] to nuclear facilities that are not subject to mandatory inspection, review and control by an agency or agencies of the State of Michigan;
"(2) whether the containment building, the containment building spray system, the containment building cooling system and the gaseous radwaste system of Consumers Power Company meet the statutory requirements so as to qualify as tax exempt facilities under 1965 PA 250.” 402 Mich 882.
We answer both questions in the affirmative.
A. State Inspection, Review, Control
The Air Exemption Act empowers the tax commission to issue a certificate exempting certain facilities from real and personal property taxes
"[i]f the director of public health finds that the facility is designed and operated primarily for the control, capture and removal of pollutants from the air, and is suitable, reasonably adequate and meets the intent and purpose of the air pollution act, Act No. 348 of the Public Acts of 1965, as amended, being sections 336.11 to 336.36 of the Compiled Laws of 1948, and rules promulgated thereunder * * *.” MCL 336.3; MSA 7.793(3).
At the time application for this exemption was made, a "facility” was defined, for purposes of the Air Exemption Act, to mean;
"machinery, equipment, structures, or any part or accessories thereof, installed or acquired for the primary purpose of controlling or disposing of air pollution which if released would render the air harmful or inimical to the public health or to property within this state. It does not include an air conditioner, dust collec tor, fan or other similar facility for the benefit of personnel or of a business.” MCL 336.1; MSA 7.793(1).
The township contends that the Palisades plant’s air pollution control facilities cannot qualify for tax exemption unless they are subject to control and continuing inspection and review by a state agency, because such control, inspection and review is necessary to meet the intent and purpose of the Air Pollution Act, and the rules promulgated under that act, as required by MCL 336.3; MSA 7.793(3). Yet, no state control, inspection or review of these facilities is permitted because the Federal government has preempted the regulation of nuclear facilities. Northern States Power Co v Minnesota, 447 F2d 1143 (CA 8, 1971), aff’d without opinion 405 US 1035; 92 S Ct 1307; 31 L Ed 2d 576 (1972). Therefore, the township concludes, no tax exemption can lawfully be granted.
We do not agree. Our review of the Air Pollution Act, MCL 336.11 et seq.; MSA 14.58(1) et seq., compels the conclusion that no state control, inspection or review of air pollution control facilities is required in order for such facilities to meet the intent and purpose of that act. The intent and purpose of the act is manifest in its statutory language. The title to that act provides, in pertinent part, that it is "[a]n act to control air pollution in this state * *
Air pollution was defined, with certain narrow exceptions not applicable here, to mean:
"[T]he presence in the outdoor atmosphere of air contaminants in quantities, of characteristics and under conditions and circumstances and of a duration which are injurious to human life or property or which unreasonably interfere with the enjoyment of life and property, and which are reasonably detrimental to plant and animal life in this state * * MCL 336.12; MSA 14.58(2).
Another section of the act provides, in part:
"It is the purpose of this act to provide additional and cumulative remedies to prevent and abate air pollution. Nothing in this act contained shall abridge or alter rights of action or remedies now or hereafter existing, nor shall any provision of this act or anything done by virtue of this act be construed as estopping * * * other governmental units from the exercise of their respective rights to suppress nuisances or to prevent or abate air pollution.” MCL 336.34; MSA 14.58(24).
Finally, among its statutory powers, we note that the Air Pollution Control Commission is given the authority to "[cjooperate with the appropriate agencies of the United States * * * with respect to the control of air pollution * * MCL 336.15(n); MSA 14.58(5)(n).
Contrary to the contention of the township, we find that the intent and purpose of this act is to control air pollution in the state; that the act itself contemplates that Federal agencies or other governmental units may have authority over the control of air pollution in the state; and that the commission need not have control over all activities regulating air pollution but may cooperate with other agencies or governmental units to meet the act’s purpose of preventing and abating air pollution.
We agree with the holding of the tax commission below that:
"The intent and purposes of the Air Pollution Act and Rules * * * are to control pollution and thereby to protect the health, welfare and safety of Michigan citizens, the productive capability of the assets of those citizens, and the natural resources of the State. That intent and those purposes are served by pollution control facilities constructed within the State of Michigan whether required by reason of federal or state regulation. Compatibility with intent and purposes is not dependent upon regulation. Such compatibility is established by the ability of a facility to control pollution. It is not regulation that is the quid pro quo for tax exemption. That quid pro quo is the control of pollution and, thereby, the protection of the health, welfare and safety of Michigan citizens and their assets. It is the fact that pollution control is provided that is important and not whether that pollution control is provided in response to state or federal regulation. If the Legislature had wanted to require more, it would have been a simple matter to require that all facilities eligible for exemption be subject to regulation under * * * the air pollution control act and rules * * *.” (Emphasis in original.)
We conclude that tax exemption can lawfully be granted for air pollution control facilities pursuant to the requirements of the Air Exemption Act even though such facilities may not be subject to mandatory inspection, review and control by the state.
B. Qualifying for Tax Exemption
The township next contends that the various facilities for which tax exemption was granted do not qualify under the Air Exemption Act as tax exempt facilities. Specifically, the township contends that these facilities were not installed or acquired for the primary purpose of controlling or disposing of air pollution, MCL 336.1; MSA 7.793(1); that the facilities are not designed and operated primarily for the control, capture and removal of pollutants from the air; that the facilities are not suitable and reasonably adequate for such purposes; and that the facilities do not meet the intent and purposes of the Air Pollution Act and rules promulgated thereunder, MCL 336.3; MSA 7.793(3).
We disagree with each of these contentions.
The first two contentions are based on similar reasoning. It is the position of the township that the containment building and its component systems were not installed or acquired for the primary purpose of controlling or disposing of air pollution, and were not designed and operated primarily for the control, capture and removal of pollutants from the air. Rather, the primary purpose for the installation, acquisition, design and operation of these facilities was to meet the requirements of the Federal government in order to obtain an operating license for the nuclear power plant. Further, the township argues that the use of the word "primary” indicates that tax exempt status may be granted only to those facilities which are installed or acquired for the purpose of capturing and removing air pollutants during normal plant operations. Because the type of facilities installed at the Palisades plant are designed to specifications intended to contain discharges resulting from an accident having a probability of occurrence of 1 in 17,000 per year, the primary purpose of the installation, acquisition, design and operation of these facilities does not comport with the statutory requirement.
Neither of these arguments can be sustained. The use of the words "primary purpose” in § 1, and "operated primarily for” in § 3 of the Air Exemption Act evidences a legislative concern with the primary purpose served by the facility for which exemption is sought. This purpose need not, necessarily, align with the motivation of the persons installing, acquiring or operating the facilities.
As to the township’s second argument, we find nothing in the language of the Air Exemption Act drawing a distinction between the control of air pollutants resulting from normal operations of the plant, and those resulting from an accident. We do not agree that the use of the word "primary” indicates a legislative intent to draw such a distinction. Rather, we find the use of the word "primary” in these sections of the act is intended to insure that tax exemption is not granted to facilities that, incidental to their primary purpose, serve to control, prevent or abate air pollution.
Because there is no error in the commission’s interpretation of this statutory language, the scope of our review is necessarily limited to a determination whether the commission’s decision is supported by competent, material and substantial evidence on the whole record, as required by the Administrative Procedures Act, MCL 24.306(1)(d); MSA 3.560(206)(10(d). We conclude that it is.
The township next contends that whether these facilities are "suitable”, and "reasonably adequate” under MCL 336.3; MSA 7.793(3) is a matter yet unproved. The township apparently bases this contention on the ground that these statutory requirements can only be met by measuring and ascertaining the effectiveness of the facilities in actual operation. Because the operation of these facilities can only be fully measured in the event of a serious accident which has not yet occurred, the township argues that the facilities’ suitability and reasonable adequacy cannot be established so as to qualify for exemption.
Again, we disagree. The suitability and adequacy of many devices and structures to serve a given purpose can be, and are, measured and tested through non-empirical studies based on accepted scientific principles and sound analysis. We agree with Consumers that the resolution of this question is particularly well-suited to the expertise of the administrative agencies charged with assessing the technical suitability and adequacy of facilities for which exemption is sought. Our review of the record indicates that the commission’s decision that these facilities are suitable and reasonably adequate was based on competent, material and substantial evidence.
Finally, the township contends that these facilities do not meet the intent and purposes of the Air Pollution Act, as required under MCL 336.3; MSA 7.793(3), for two reasons.
First, in order to meet the intent and purposes of the Air Pollution Act, the township argues that these facilities must be subject to control and continuing inspection and review by a state agency. We have already resolved this argument against the township.
Second, the township argues that the failure to mention radiation in the definition of "air contaminant” in the Air Pollution Act indicates that the intent and purposes of that act were not to control and prevent the type of pollution that may occur at the Palisades plant. The pertinent section of the act provides:
"(b) 'Air contaminant’ means a dust, fume, gas, mist, odor, smoke, vapor or any combination thereof.” MCL 336.12; MSA 14.58(2).
While our review of the record indicates that radiation per se might not be an air contaminant within this definition, there is competent, material and substantial evidence to support the commission’s decision that radioactive materials, of the type controlled or disposed of by these facilities, are air contaminants. _
We conclude that there is competent, material and substantial evidence on the whole record to support the commission’s finding that the Palisades containment building, the containment building spray system, the containment building cooling system and the gaseous radwaste system meet the statutory requirements to qualify as tax exempt facilities under the Air Exemption Act.
II. Water Pollution Control Facilities
Leave to appeal was granted in this case limited to the following specific questions concerning the Palisades water pollution control facilities:
"(1) [W]hether the liquid radwaste system and the cooling towers at the Consumers Power Palisades plant are real property and are ineligible for tax exemption under 1966 PA 222 [the Water Exemption Act];
"(2) whether the water pollution control facilities exemption act as construed to exempt from property taxation personal property used for control of water pollution, but not to exempt real property used for the same purpose, violates the Equal Protection Clause of the Michigan and United States Constitutions.” 402 Mich 882.
We find the Palisades water pollution facilities are real property and ineligible for tax exemption under the Water Exemption Act for all applicable tax years preceding 1977 PA 282 which amended the act to provide an exemption to qualifying facilities from real property taxes as well as personal property taxes.
Further, we find that our construction of the Water Exemption Act does not violate the Equal Protection Clauses of either the Michigan or the United States Constitution.
A. Real Property Questions
1. Exemption From Personal Property Taxes
The Water Exemption Act, MCL 323.351 et seq.; MSA 7.793(51) et seq., provides for the issuance of certificates by the State Tax Commission which exempt water pollution control facilities from certain taxes. Specifically, § 4 of that act provided, in part, at the time Consumers applied for exemption:
"For the period subsequent to the effective date of the certificate and continuing so long as the certificate is in force, a facility covered thereby is exempt from personal property taxes imposed under Act No. 206 of the Public Acts of 1893, as amended, being sections 211.1 to 211.157 of the Compiled Laws of 1948.” MCL 323.354; MSA 7.793(54). (Emphasis supplied.)
By 1977 PA 282, this section of the act was amended to provide that "a facility covered thereby is exempt from real and personal property taxes * * *”. (Emphasis supplied.)
When Consumers Power applied for tax exemption certificates under the Water Exemption Act for the Palisades liquid radwaste system and cooling towers, the State Tax Commission granted the exemptions. In its official order of July 9, 1975, affirming the grants of these exemptions, the commission addressed the question of the real property nature of these facilities and held that read ing the act as a whole and requiring that these facilities meet the other criteria of the act results in these facilities qualifying for the statutory tax exemption.
In reaching this decision the commission adopted the rationale proffered by Consumers Power that a reading of the act as a whole, and specifically the statutory definitions of "facility”, "treatment works”, and "disposal system”, MCL 323.351; MSA 7.793(51), compel the conclusion that the Legislature intended to redefine the term "personal property” for exemption purposes to include within that term various types of immovable plant equipment coming within these definitions and normally used for water pollution control purposes, even though they might be regarded as real property for other purposes. Any other interpretation, according to the commission, would defeat the purpose of the act and would mean thé Legislature wrote a useless law. The circuit court agreed, but the Court of Appeals reversed.
Consumers Power elaborates on this same rationale before this Court. We find its reasoning unpersuasive particularly in light of one very specific amendment to this act while it was in bill form, being considered for enactment into law by our state Legislature.
As originally introduced on January 19, 1966, House Bill No. 3075 (subsequently enacted as the Water Exemption Act), provided in part in § 4, beginning on page 3, line 21:
"(1) For the period subsequent to the effective date of the certificate and continuing so long as the certificate is in force, a facility covered thereby is exempt from real and personal property taxes imposed under Act No. 206 of the Public Acts of 1893, as amended, being sections 211.1 to 211.157 of the Compiled Laws of 1948.” (Emphasis supplied.)
This bill was first referred to the Committee on Conservation and Recreation, 1 Michigan House J (1966) 63, which reported it back with recommended amendments. 1 Michigan House J (1966) 650. The amendments were adopted and the bill was referred to the Committee on General Taxation, 1 Michigan House J (1966) 703. The Committee on General Taxation reported the bill back to the full House with recommended amendments, including the specific recommendation to: "4. Amend page 3, line 24, by striking out 'real and.’ ” 2 Michigan House J (1966) 1468. These amendments were adopted by the full House and the bill was passed. 3 Michigan House J (1966) 2196.
After adopting an additional amendment to the bill as passed by the House, which did not affect § 4(1), the Senate passed the bill. 2 Michigan Senate J (1966) 1947._
The House concurred in the Senate amendment and the bill was sent to the Governor for signature. 4 Michigan House J (1966) 3244. On June 11, 1966, it was approved by the Governor and given immediate eifect as 1966 PA 222.
We find that tracing this legislative history makes clear that the intent of the Legislature in enacting this law was to provide exemption to qualifying water pollution facilities from personal property taxes only. We have no supporting documentation in the legislative history to provide an insight into the reason for striking the reference to exemption from real property taxes.
Mere conjecture suggests that there may have been strong opposition to the bill as originally drafted by local units of government who could foresee the exemption of large water pollution control facilities from real property taxes as an erosion of their property tax base. Or the Legislature might simply have decided to proceed cautiously in granting these exemptions to determine whether granting exemptions from personal property taxes alone would provide adequate incentive for the acquisition and operation of socially desirable water pollution control facilities.
But whatever the unpreserved legislative intent was in 1966, we can only conclude that the Legislature as a whole, and particularly the members of the House Committee on General Taxation, adopted this amendment to the bill as introduced deliberately and with a purpose. While the act’s definitions of facilities, treatment works and disposal systems which may qualify for exemption appear to include many facilities that might normally be classified as real property, we do not read these definitions as an indication that the Legislature redefined personal property for purposes of the act. We do not think the brief legislative history of this bill warrants such a conclusion.
We also disagree with Consumers Power’s contention that the amendment to § 4 made by 1977 PA 282, to provide for exemption for water pollution facilities from real and personal property taxes was simply intended to clarify the purposes of the act.
We hold that, prior to the effective date of 1977 PA 282, qualifying water pollution control facilities were eligible for exemption from personal property taxes only under MCL 323.354(1); MSA 7.793(54)(1), and the Legislature did not redefine the term "personal property” for purposes of tax exemption under the act.
2. The Liquid Radwaste System and the Cooling Towers are Real Property
In the first issue on which leave to appeal was granted, we asked the parties in this case to address the question of whether the Palisades plant’s liquid radwaste system and cooling towers are real property. In its brief, Consumers Power argued that these facilities are not real property for purpose of exemption under the act because the act contemplated a definition of personal property that included these facilities. We have decided this argument against Consumers.
Next, Consumers contended that if common-law principles or the General Property Tax Act are determined to be material to a definition of real and personal property for purposes of this suit, then this matter should be remanded to the State Tax Commission for the development of a record as to the nature of these facilities.
While we acknowledge that the commission’s decision below appeared to render it unnecessary to decide whether these facilities were real or personal property for purpose of eligibility for exemption under the act, we find there is adequate evidence in the record for determining that these facilities are real property. Further, because this Court specifically invited the parties to address this issue, Consumers had the opportunity to refute the eyidence we find in the record to support this conclusion, yet failed to do so.
The most compelling evidence we find in the record to support the conclusion that these facilities are real property is found in Consumers Power’s admitted failure to report any portion of these facilities on its personal property tax statements for 1974 and 1975. The personal property statement which Consumers properly filed, pursuant to MCL 211.18; MSA 7.18, specifically requests the reporting of the following information on page 2:
"3. Air Pollution Control Facilities and Water Pollution Control Facilities certified exempt by the Michigan State Tax Commission. Use cost installed. Attach rider giving certificate number, year of acquisition and cost by year of acquisition.”
At the hearing before the commission, counsel for Consumers stipulated that Consumers reported nothing in this provision in either its 1974 or 1975 personal property statement.
In addition to this failure of Consumers to report any part of the water pollution control facilities as exempt personal property, the following unchallenged testimony of the Covert Township assessor (Mr. Sarno) supports the conclusion that these facilities are real property.
"Q. Mr. Sarno, in 1973, did Consumers Power Company furnish you the estimated cost of the partial construction of the liquid radwaste system and cooling towers?
"A. They did.
”Q. What was the amount furnished you by Consumers Power?
"A. $10,880,258.
”Q. Was that represented to you to be real property?
"A. It was included in the real [property] report.
”Q. Furnished to you by Consumers Power?
"A. That is correct.
"Q. Did you place the partially constructed facility on the real property roll for the year 1973?
'A. I did as work in progress.
"Q. Approximately what amount?
"A. On the assessed valuation approximately $1,250,-000.
"Q. Did Consumers Power Company appear at the Board of Review?
'A. Yes.
"Q. Were they aware of the fact it was on the real property roll?
"A. I would assume they were.
”Q. Did Consumers Power Company furnish you with a personal property statement for the year 1973?
'A. Yes.
”Q. Either the cooling tower, a portion of it or rad-waste system, any portion of it included in the personal property statement?
"A. It was not.
"Q. In 1974 did Consumers Power Company furnish you a statement of the value of the completed and partially completed cooling towers and radwaste system?
"A. Yes.
”Q. Was that furnished in the statement form?
"A. Yes.
”Q. Represented to you to be real property?
"A. Yes, sir.
"Q. Did Consumers Power furnish you a personal property statement for the year 1974?
"A. Yes.
"Q. Did that statement include all or any portion of the cooling towers, all or any portion of the liquid radwaste system?
"A. It did not.
”Q. Did Consumers Power Company furnish you a personal property statement for 1975?
"A. Yes.
"Mr. Tracy: Mr. Chairman, didn’t we go through all of this yesterday?
"Chairman Purnell: I think we did this yesterday.
"Mr. Reed: As I look through the record at one point it became colloquy, four-way colloquy.
"Chairman Purnell: This colloquy was going along. I realize what went on yesterday. What we finally ended up saying is that you agreed that you would refer to that report and introduce a blank personal property statement, you both stipulated that it was not reported on the personal property statement.”
Any argument that part or all of the Palisades plant’s liquid radwaste system or cooling towers should not properly be classified as real property for the purpose of this suit is foreclosed by Consumers’ failure to challenge this record evidence. We conclude that these facilities are real property and were not eligible for tax exemption under the Water Exemption Act prior to the 1977 amendment.
B. Equal Protection Question
One question remains for resolution. Having construed the Water Exemption Act to exempt water pollution control facilities from personal property taxes but not from real property taxes (prior to the 1977 amendment), we must determine whether the statute, as so construed, violates the Equal Protection Clauses of the Michigan and United States Constitutions. Const 1963, art 1, § 2; US Const, Am XIV. We find no violation of either clause.
Consumers’ contention that the construction we have given this statute violates equal protection guarantees is bottomed on the argument that distinguishing between classifications of property bears no reasonable relationship to the purposes of the act when property in both classifications achieves the object of the legislation, i.e., to prohibit pollution of the state’s waters. We do not agree.
The cases which have resolved challenges to state legislative classifications under the Equal Protection Clause of the United States Constitution are legion.
In several cases, particularly pertinent to the challenge brought today, the United States Supreme Court has upheld the classification of property for taxation, and exemption from taxation, by state legislatures.
In Citizens’ Telephone Co of Grand Rapids v Fuller, 229 US 322; 33 S Ct 833; 57 L Ed 1206 (1913), the Court upheld a Michigan statute which provided a property tax exemption to telephone and telegraph companies whose receipts in Michigan did not exceed $500 per year. The statute was challenged as a violation of the Equal Protection Clause. In reaching its decision the Court said:
"The power of exemption would seem to imply the power of discrimination, and in taxation, as in other matters of legislation, classification is within the competency of the legislature.” 229 US at 329.
And, after citing numerous cases in which that Court had upheld state tax statutes which had variously classified the objects of taxation, the Court went on to say:
"[These cases] illustrate the power of the legislature of the State over the subjects of taxation, and the range of discrimination which may be exercised in classifying those subjects when not obviously exercised in a spirit of prejudice or favoritism. * * * Granting the power of classification, we must grant Government the right to select the differences upon which the classification shall be based, and they need not be great or conspicuous. Keeney v New York, 222 US 525, 536 [32 S Ct 105; 56 L Ed 299 (1912)]. The State is not bound by any rigid equality. This is the rule; — its limitation is that it must not be exercised in 'clear and hostile discriminations between particular persons and classes.’ See [Quong Wing v Kirkendall], 223 US 59, 62, 63 [32 S Ct 192; 56 L Ed 350-352 (1912)]. Thus defined and thus limited, it is a vital principle, giving to the Government freedom to meet its exigencies, not binding its actions by rigid formulas but apportioning its burdens, and permitting it to make those 'discriminations which the best interests of society require.’ ” 229 US at 331.
We find no prohibited spirit of prejudice or favoritism here. Indeed, as we noted in our discussion, supra, the Legislature may reasonably have decided that exempting water pollution control facilities from personal property taxes but not real property taxes would accomplish the act’s purpose of encouraging investments in those facilities which the Legislature deemed to be in the public interest.
Further support for our conclusion can be found in Nashville, C & SL R Co v Browning, 310 US 362, 368-369; 60 S Ct 968; 84 L Ed 1254 (1940), where in the context of an equal protection challenge to a property tax assessed against a railroad, the United States Supreme Court said:
"That the states may classify property for taxation; may set up different modes of assessment, valuation and collection, may tax some kinds of property at higher rates than others; and in making all these differentiations may treat railroads and other utilities with that separateness which their distinctive characteristics and functions in society make appropriate— these are among the commonplaces of taxation and of constitutional law. [Cases cited.] Since, so far as the Federal Constitution is concerned, a state can put railroad property into one pigeonhole and other property into another, the only question relevant for us is whether the state has done so. If the discrimination of which the Railway complains had been formally written into the statutes of Tennessee, challenge to its constitutionality would be frivolous.” (Emphasis supplied.)
And finally, in an early case challenging a personal property tax levied against cattle grazing on tax exempt land, the United States Supreme Court said, without specifically citing the Equal Protection Clause:
"[I]t is the usual course in tax laws to treat personal property as one class and real estate as another, and it has never been supposed that such classification created an illegal discrimination, because there might be some persons who owned only personal property, and others who owned property of both classes.” Thomas v Gay, 169 US 264, 281; 18 S Ct 340; 42 L Ed 740 (1898).
Viewing the challenged classification before us in light of this authority, we find no violation of the United States constitutional guarantee of equal protection.
Similarly, we find no violation of our state constitutional guarantee of equal protection. Consumers Power does not contend that a more stringent equal protection test than that required under the United States Constitution should be applied under our state constitution, in the instant case, nor do we perceive any reason for applying a more stringent test. Furthermore, in the face of an equal protection challenge under the United States Constitution, this Court has recognized that tax statutes may discriminate among classifications of properties, businesses, trades, callings or occupations so long as the discrimination is not arbitrary but is based upon a reasonable distinction or if any state of facts can reasonably be conceived to sustain it. W S Butterfield Theatres, Inc v Dep’t of Revenue, 353 Mich 345, 353; 91 NW2d 269 (1958). We have found such reasonableness in the classification made by the Legislature here.
We have also held that a legislative classification will be upheld in the face of an equal protection challenge under our state constitution if it rationally furthers the object of the legislation and involves neither a suspect class nor fundamental rights. In re Kasuba Estate, 401 Mich 560, 569; 258 NW2d 731 (1977). We find that the instant classification involves no suspect class or fundamental right and rationally furthers the object of the legislation.
III. Conclusion
The judgment of the Court of Appeals is affirmed.
No costs.
Coleman, C.J., and Kavanagh, Williams, Levin, and Fitzgerald, JJ., concurred with Ryan, J.
The total exemption granted for the air pollution control facilities was less than the amount claimed exempt by Consumers Power. The commission deducted an amount from that claimed by Consumers which represented the cost of a conventional building that would simply have provided weather housing for the reactor, as well as the cost that would have been saved had Consumers placed certain radiation shielding closer to the reactor. In the opinion of the Division of Air Pollution Control of the Public Health Department, these costs did not qualify for the statutory exemption.
This litigation has an involved history that is not necessarily pertinent to the issues addressed today, but which is briefly recounted for purposes of clarifying the background of these cases.
In May, 1968, Consumers Power Company applied for an exemption for the Palisades plant’s containment building as well as the building’s spray system, the building’s cooling system and the facility’s gaseous radwaste system. The original application was denied, but an amended application was approved in January, 1972. The Covert Township assessor then sought leave to appeal this decision in the Court of Appeals. In May, 1974, the Court of Appeals decided that appellate jurisdiction over this matter was vested in the circuit court and remanded the appeal to the Thirty-Sixth Judicial Circuit for consideration on the merits. Covert Twp Assessor v State Tax Commission, 53 Mich App 300; 218 NW2d 807 (1974).
In the fall of 1972, Consumers Power filed two applications for tax exemption under the Water Exemption Act for the liquid radwaste system and the cooling towers located at the Palisades plant. Both of these applications were granted in September, 1973. The Covert Township assessor appealed this decision to the Court of Appeals and that court determined that appellate jurisdiction was vested in circuit court and remanded to the Thirty-Sixth Judicial Circuit on the authority of the Air Exemption Act case, on September 9, 1974.
Thereafter, Consumers Power, the assessor and the State Tax Commission stipulated in circuit court for entry of an order remanding both of these cases to the State Tax Commission for determination of certain stipulated issues concerning the tax exemption certificates issued for both the air pollution and water pollution control facilities at the Palisades plant. On the same day, orders for partial summary judgment were entered by the circuit court which provided, in part, that the final determination of this proceeding would determine the validity and effect of the air and water pollution control facilities exemption certificates for the tax year 1974 and all subsequent years in which the facts and the law remained unchanged.
On July 9, 1975, the State Tax Commission issued its order affirming both the air pollution control exemption certificate and the water pollution control exemption certificate. This decision was affirmed by the circuit court in an order filed July 30, 1976, following a written opinion filed June 23, 1976.
The Court of Appeals affirmed the tax exemption for the air pollution control facilities but reversed as to the tax exemption for the water pollution control facilities. Covert Twp Assessor v State Tax Commission, 77 Mich App 626; 259 NW2d 164 (1977).
MCL 336.4; MSA 7.793(4).
MCL 336.1; MSA 7.793(1) and MCL 336.3; MSA 7.793(3).
At the commission hearing, witness Keeley, at that time the Director of Quality Assurance Services for Consumers Power Company, described the function of the containment building:
"The principal purpose [of the containment building], as far as I’m concerned, is to, number one, contain the fission products that result from various postulated conditions, these being accidents of various severity, and also to contain fission products that are released from the nuclear steam supply system during normal operation, and under the worst assumed accident condition, to contain the water-steam mixture that occurs when the design basis accident occurs and the fission products that occur after this design basis accident.”
Witness Keeley further testified that the purpose of the containment building’s spray and cooling systems was to assure the integrity of the containment building through reduction of temperature and pressure in the event of an accident. Finally, witness Keeley testified that the gaseous radwaste system contained waste gases resulting from the operation of the reactor in "hold-up” tanks until the radioactivity being emitted by the fission gases decayed to a point at which the gases could safely be released into the environment.
The testimony of Covert Township’s witness Lapp, an energy consultant with primary emphasis on nuclear power systems, was in accord with witness Keeley’s testimony. Concerning the containment building, witness Lapp said, "The primary purpose of the containment building is to prevent the release of radioactive material to the environment in the event of an accident.” His testimony concerning the building’s spray and cooling systems as well as the gaseous radwaste system were similarly in agreement with the testimony of witness Keeley.
Illustrative of the testimony concerning the suitability and reasonable adequacy of these facilities was the following statement of witness Lapp:
"In the event of an accident of this kind, a loss of cooling accident, and a failure of emergency core cooling, you would have these [sic] pressurization of the atmosphere within containment. It would get hot and it would raise in pressure. The reactor at the Palisades is sized to, I believe, sustain 55 pounds per square inch of pressure and 285 degrees Fahrenheit temperature.
"We have had accidents in which containment has been pressurized, in which pressures have gone up to 20 pounds per square inch and temperatures have gone up to over 300 degrees Fahrenheit.
"Containment has been tested and it works. There is no doubt about that.” (Emphasis added.)
Witness Keeley’s testimony was that the design of the containment building involved the assumption of the most severe accident (a full core meltdown) and that the containment structure is necessary to meet limitations on radioactive emissions under either normal operating or accident conditions.
In a memo admitted into evidence at the commission hearing, from the Air Pollution Control Division of the Department of Natural Resources to the State Tax Commission, the Division stated:
"It is the opinion of the Air Pollution Control Division, Michigan Department of Natural Resources, that the definition of air contaminants includes radioactive materials such as gases and particulates but does not include radiation itself.”
Consumers Senior Health Physicist, witness Sinderman, testified on direct examination before the commission:
"Q. Would you look at page 76 of the record?
"A. Yes.
"Q. What does that show?
"A. That shows — that is table 11-4, and it is entitled, 'Activity in Coolant and Gaseous Waste.’ It essentially shows the seven krypton and xenon radio nuclid[es] and their concentration in various portions of the gaseous radwaste system.
"Q. Are those all radioactive gases?
'A. Yes.
"Q. All right. If they were permitted to get outside the containment into the environment, would they all contribute to a radiation dose to an individual who might be at the site boundary?
"A. If these materials are released to the environment, because they are radioactive, they emit radiation, and as a result would contribute to the exposure or dose to a person in the vicinity of those gases, yes.
"Q. All right. If you were operating with the amount of failed fuel that you license — excuse me — the Palisades Plant operating license permitted you to operate with, assuming no holdup in the gaseous radioactive waste system, would you release radioactive materials to the environment?
"A. Yes.
"Q. All right. What nature? Would they — would they all be gases?
"A. May I ask you a question? Are we speaking specifically of gaseous radwaste system at this point?
"Q. Yes.
"A. No, they would not. They would be the gases, and the operation of the plant to date has shown there would be particulates, some of the other fission products that are not gases, and even some of these gases decay to what are called daughter products that are also radioactive and are particulate in nature.
”Q. Are those particulates respirable?
"A. Yes.
”Q. What is your deñnition of respirable?
"A. My deñnition of respirable is a particle that is sufficiently small to enter the respiratory tract, but sufficiently large so it is retained in the tract and not exhaled. And I believe that is essentially the definition given to this Commission by Mr. Jager.” (Emphasis added.) See, also, Appendix, pp 910a-924a.
Portions of witness Lapp’s testimony could also support a finding by the commission that the radioactive materials controlled and disposed of by these facilities constituted air contaminants (Appendix, pp 614a-629a).
The following definitions were found in § 1 of House Bill 3075, as introduced:
"Sec. 1. As used in this act:
"(a) 'Facility’ means any disposal system, including disposal wells, or any treatment works, pretreatment works, appliance, equipment, machinery or installation constructed, used or placed in operation primarily for the purpose of reducing, controlling or eliminating water pollution caused by industrial waste including the real property upon which any of the preceding is located.
"(b) 'Industrial waste’ means any liquid, gaseous or solid waste substance resulting from any process of industry, manufacture, trade or business, or from the development, processing or recovery of any natural resource which is capable of polluting the waters of the state.
"(c) 'Treatment works’ means any plant, disposal field, lagoon, dam, pumping station, incinerator or other works or reservoir used for the purpose of treating, stabilizing, isolating or holding industrial waste: "(d) 'Disposal system’ means system for disposing of or isolating industrial waste and includes pipelines or conduits, pumping stations and force mains, and all other constructions, devices, appurtenances and facilities used for collecting or conducting water borne industrial waste to a point of disposal, treatment or isolation.”
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North, J.
By their suit plaintiffs sought to have a constructive trust in their behalf decreed in property hereinafter designated. After proofs in open court, the circuit judge held plaintiffs had not established their right to relief, particularly “that plaintiffs have failed to sustain the burden which rested upon them to establish the contract alleged in their bill of complaint.” A decree dismissing the bill of complaint was entered and plaintiffs have appealed.
W. Dorwin Winchell, a resident of Tuscola county, died testate in October, 1911', leaving an estate of a value between $10,000 and $11,000. There survived him two children born of his first marriage, Martha Misner and Roy Winchell, and the defendant, Sarah Winchell, a widow by virtue of a second marriage. In his will the testator provided that during her natural life and as long as she remained a widow, Sarah M. Winchell should have the use of one-half of deceased’s estate, both real and personal; and further, the following: “Amd as much of the principal of such one-half of my property as may be necessary for the support and comfort of my said wife.” The balance of the estate was left in equal shares to the two children of the first marriage. The will was probated in the probate court of Tuscola county. The order assigning the residue of the Winchell estate, dated July 23, 1912, made the following disposition of the estate:
“It is ordered, that such residue of personal estate and real estate, (after payment of debts, funeral charges, expenses of administration, et cetera) of which said deceased died seized,' be and the same is hereby assigned to the said named legatees accord ing to law, as provided by the terms of the will of W. Dorwin ‘Winchell, deceased, to each the following part or proportion thereof, to-wit: To said named Sarah M. Winchell, a life estate in one-half of §aid residue of real and personal estate.
“To said named Roy S. Winchell and Martha E. Misner, each, a one-half portion of said residue of real and personal estate, subject to the life estate of said named Sarah M. Winchell.”
On July 30, 1912, tlie three parties interested in the distribution of the estate met in the probate court and in the presence of the probate judge and of the wife of Roy Winchell had a conference as to the manner in which the estate should be divided between the beneficiaries, There was a very friendly relation between Martha Misner and Roy Winchell and their stepmother, Sarah Winchell; and the record fairly discloses that Martha and Roy were not adverse to giving their stepmother a somewhat more liberal division of the property than was provided in the will or in the order of distribution, which did not literally conform to the' terms of the will. In an effort to arrive at the desired result consideration was given to the fact that Sarah Winchell had some property in her own right, and that the amount of that property as compared with the amount of the property which it was being planned should go to her from her husband’s estate, was as two-sevenths to five-sevenths. Plaintiffs claim an oral agreement was finally reached and a division made accordingly whereby Sarah Winchell received as the absolute owner approximately one-half of the Winchell estate, all of that one-half being personal property. íhe remaining one-half was divided equally between testator’s two children. But it is the claim of plaintiffs that the division of the property above noted was made in consequence of a simultaneous agreement between the three parties that Sarah Winchell should make a will by the terms of which five-sevenths of the estate she possessed at the time of her death would be left to Martha Misner and Eoy Winchell.
On the day in question Sarah Winchell did execute a will prepared by the Tuscola county probate judge which, according to testimony in behalf of plaintiffs, conformed to the agreement of the parties as above outlined; and the will so executed was left in the custody of the probate judge until some time in 1919. On the 9th day of August, 1919, Sarah Winchell executed another will in which she provided: “I hereby revoke all former wills by me at any time.made.’'’ This latter will was witnessed by the Tuscola county probate judge and was left in his custody. The 1919 will provided for a disposition of the testatrix’s estate which was very different and less favorable to the two stepchildren than was made by the 1912 will. Again in the spring of 1944, Sarah Winchell made another will which at the time of the trial was in the' custody of defendant Frank Mixter, but the terms of this 1944 will are not disclosed by the testimony. The 1912 will has entirely disappeared.
In September or October, 1944, Sarah Winchell, who was then nearly 80 years of age, visited her stepdaughter, Martha Misner; and while there Mrs. Misner was informed by her stepmother that she had executed another will in the spring of 1944, and that its terms were contrary to the alleged agreement made in the office of the probate judge, July 30, 1912. Thereupon Sarah Winchell signed a communication in the form of a letter addressed to defendant Frank Mixter, a nephew .of Sarah Winchell, who is the son of Sarah’s sister, defendant Emma Mixter. This letter which was delivered by Martha Misner and Roy Winchell to Frank Mixter, who is an attorney in Detroit, in part read as follows:
“This will authorize you to surrender to (Martha) Elma Misner or Roy Winchell, either or both, all papers of any kind or description, including will or wills, * * * and any and all papers belonging to me of any kind or description and all personal property in your possession or held in trust by you for me.”
Frank Mixter declined to comply with the terms of the letter addressed to him because, as he explained in his testimony, he had been directed by Sarah Winchell to retain in his possession the items referred to in the letter. However in response to a request written to him in January, 1945, by Sarah Winchell, Frank Mixter came to the home of Mrs. Misner in Grand Haven where Sarah Winchell was then staying. At his request Frank Mixter had a private interview with Sarah Winchell which, according to Mixter’s testimony, resulted in Sarah Winchell saying in the presence of Mrs. Misner that she desired Frank Mixter to continue to retain the custody of such papers and properties belonging to her as he then had.
It is a fair inference from the record that shortly after the last above noted occurrence Sarah Winchell returlied to Highland Park, Michigan, where she resided with her sister, Emma Mixter. The , bill of complaint was filed May 1, 1945. It charges that defendant Sarah Winchell violated the alleged agreement of July 30, 1912, by withdrawing the will which she deposited on that date with the probate judge of Tuscola county and by executing the subsequent will in 1919; and further that defendants Frank Mixter and Emma Mixter “through fraud, deceit and misrepresentations have secured posses sion and control of all the property owned by defendant, Sarah Winchell. Such property includes the property or its equivalent obtained by virtue of the agreement of July 30, 1912.” The prayer of the bill is for an accounting on the part of defendants, that a trustee be appointed to have control arid management “of the property found to belong to these plaintiffs by virtue of the will of decedent, W. Dorwin Winchell,” and that an injunction issue restraining defendants from disposing of any of such property or the proceeds received therefor except that “said Sarah Winchell may have the use of such property necessary for her proper maintenance and support.” There is also a prayer for general relief.
We hear this case de novo; and our review requires determination of whether the trial court was correct in dismissing the bill of _ complaint or whether, on .the .'other hand, plaintiffs are entitled to have a constructive trust decreed as prayed or in lieu thereof some other equitable relief within the scope of the pleadings which will protect plaintiffs in their alleged rights. The issues are presented by the separate answers filed by the respective defendants in each of which plaintiffs’ right to relief is denied and dismissal of the bill of complaint prayed. In her answer Sarah Winchell admits that she did execute a will and that it was “filed in the probate court for the county of Tuscola on or about July 30,1912, but denies that said will was in consequence of any agreement between the plaintiffs and this defendant, or between this defendant and anyone else. Further * * * this defendant denies that she ever agreed to leave said will so deposited as above mentioned for any definite period of time. * * * Answering paragraph 8, this defendant admits that she is the owner of property, but whether the same is of greater or lesser value than July 30,1912, she is unable to state.” The answers of the other two defendants allege they have no knowledge of the alleged transaction between plaintiffs and Sarah Winchell on July 30, 1912; and specifically deny the fraud, deceit, misrepresentations, et cetera, charged against them in the bill of complaint.
Seemingly the primary issue presented on this appeal is whether the July 30, 1912, transactions were consummated and the agreement made between the stepchildren and Sarah Winchell. In other words, whether the trial judge was correct in his holding “that plaintiffs have failed to sustain the burden which rested upon them to establish the contract alleged in their bill of complaint.” Without reviewing the testimony contained in the record in detail, we deem it sufficient to note Mrs. Misner testified repeatedly that the agreement as to Sarah Winchell making a will and the division of the property of the W. Dorwin Winchell estate which had been assigned to Mrs. Misner, Boy Winchell and Sarah Winchell by the order of the probate court dated July 23, 1912, was as outlined in the above statement of plaintiffs’ claim. On this phase of the record we quote but briefly from Mrs. Misner’s testimony :
“We said we would release our rights to the half of my father’s estate so that my mother (Sarah Winchell) would have absolute right to this .property, not the use of it, but the right to the property, in consideration for her making a will giving us back at her death anything that remained of our father’s estate. * • * *
“Whatever property remained of mother’s estate at her death, of every property she was possessed of at her death, entire property which she got from her people and from my father, the entire property, we were to have 5/7 of that.”
Arid in a general way, though not in all details, the testimony of Mrs. Misner was corroborated by that of Mary Winchell, the widow of Roy Winchell, who died after suit was instituted but before the case was heard. Mary Winchell as the executrix of Roy’s estate was substituted as a party plaintiff herein. Further, the testimony in the above respects in very material aspects is corroborated by written documents made at the time of the July 30, 1912, agreement. The testimony of defendant Sarah Winchell, who was approximately 80 years of age at the time of the trial, was merely that she had no recollection of any of the material aspects of the alleged agreement whatever. Under such a record we are constrained to hold that the trial judge was in error in holding that plaintiffs in the respect under consideration had failed to sustain the burden of proof. ' The bill of complaint should not have been dismissed on that ground.
However, there was no testimony whatever in support of the charge that defendants Frank; Mixter and Emma Mixter were guilty of any fraud, deceit or misrepresentations in the respect alleged in the bill, and therefore in so far as those defendants were so charged the bill of complaint was properly dismissed.
The foregoing brings us to the question of whether under the circumstances of this case plaintiffs are entitled to any equitable relief within the scope of the pleadings. First, should a constructive trust be created as prayed by plaintiffs? We think plaintiffs are not entitled to have such a trust decreed .and a trustee appointed. No such control of the property of Sarah Winchell was contemplated at the time the 1912 agreement was made and on which plaintiffs now rely for relief. Nor do we find that any of the subsequent acts on the part of Sarah Winchell, of which plaintiffs complain, equitably justify depriving her of the possession, management and use of her own property. Further, to create a constructive trust would, doubtless lead to continuous judicial supervision of the administration of the trust as well as the expense of the trusteeship. Clearly the purpose and effect of creating such a trust in behalf of plaintiffs would be to accomplish the specific performance of the July 30, 1912, agreement. Granting relief in the nature of specific performance is a matter of grace, not of right. In our judgment it is not essential, nor would it be equitable under the circumstances of the instant ease to decree a constructive trust. Plaintiffs have not brought to our attention any case involving comparable circumstances wherein a constructive trust was decreed. For the reasons indicated we decline to decree a constructive trust and the appointment of a trustee as prayed by plaintiffs.
Nor, under the circumstances of the instant case, are plaintiffs at this time entitled to an accounting from any of defendants. This is true for the reason that plaintiffs are not entitled to the possession or control of the property of Sarah Winchell, some or all of which now is in the possession of defendant Frank Mixter, until the death of Sarah Winchell; and the further fact that in the meantime under the terms of the contract made in 1912 Sarah Winchell is not only entitled during her lifetime to the possession, management and enjoyment of the property which she received under the 1912 contract but she is also entitled to appropriate to her own use so much of such property as may be reasonably necessary for her proper maintenance and support.
But in our judgment it does not follow under the pleadings and proofs in the instant case that plaintiffs are not entitled to the equitable relief hereinafter indicated. Such relief may be granted in the light of the following propositions of law.
If by tbe terms of a contract, it is capable of being performed within one year, it is not void under the statute of frauds though the parties intended it should extend over a longer period. Epstean v. Mintz, 226 Mich. 660; Ter Keurst v. First State Bank, 271 Mich. 259.
“Establishment of the alleged contract is a matter of proof. Its enforcement, if established, is a matter of right. * * * A court of equity may decree specific performance of a contract to make a will. (Citing numerous authorities.)” Burgess v. Jackson Circuit Judge, 249 Mich. 558, 563.
“There is no doubt but it is competent for .a person to make a valid agreement'binding himself to make a particular disposition of his property by last will and testament. (Citing numerous authorities.) * * * The nonfulfillment of this contract upon the part of Ann Carmichael would be a fraud which equity would not allow.” Carmichael v. Carmichael, 72 Mich. 76, 85 (1 L. R. A. 596, 16 Am. St. Rep. 528).
To like effect, see Bird v. Pope, 73 Mich. 483.
“It was expressly held in Carmichael v. Carmichael, 72 Mich. 76 (1 L. R. A. 596, 16 Am. St. Rep. 528), that a person may enter into a valid agreement by parol, binding himself to make a particular testamentary disposition of his property.” Wright v. Wright, 99 Mich. 170, 177 (23 L. R. A. 196).
In Adams v. Swift, 169 App. Div. 802 (155 N. Y. Supp. 873), the following is quoted with approval from Mutual Life Ins. Co. v. Hollodag, 13 Abb. N. C. (N. Y.) 16; and we note that the factual background of the New York case is very much in the same field as that of the instant case.
“If the agreement (to make a will) was valid in law and in equity, it would be a mockery of justice to say that, having executed the will, she (testatrix) fully satisfied her part of the agreement, and was at liberty to revoke it the next day. The right secured by her husband (to have the property left to him on the death of testatrix) was substantial, and could not be defeated by another will. The spirit and true intent of the agreement, under which she became seised of and enjoyed the estate, obliged Mrs. Ilolloday (the testatrix) to adhere thereafter to the terms of the devise in' her husband’s favor. * # # If one 0£ coritracting parties induces the other so to act that, if the contract be abandoned, he cannot be restored to his former position, the contract must be considered as perfected in equity, and a refusal to complete it is in the nature of a fraud. * * * To defeat this conclusion, it cannot be insisted that a will is in its own nature ambulatory and revocable during the lifetime of the testator. This statement, true in itself, can have no application to a case where the testator has obligated himself by a valid agreement founded upon a good consideration, which is wholly inconsistent with the making of another will, by which he should attempt to devise the property, the subject of the agreement, to others than the person from whom the consideration proceeded, and to whom he was bound by the terms of the agreement to devise it. * * * The absolute right to dispose of property, as the testator may elect at any time during life, may be abridged or modified by express contract, as other rights often are. And the obligation not to revoke or change a will, although negative, is as much involved in the agreement as the affirmative duty to devise in a certain way. ’ ’
As above indicated, we are not in accord with defendants’ contention that the contract upon which plaintiffs rely was not established by competent proof. Nor do we agree with defendants that adequate consideration for the July 30,1912, agreement was not proven, that the agreement was not performed by plaintiff Martha Misner, and Roy Wincliell, or that there is not “present existence of the subject-matter of the contract.” There was adequate consideration in that the agreement between the parties resulted in Sarah Winchell becoming the absolute owner of one-half of the estate of her deceased husband, instead of having only the life estate therein under the terms of the will or the final order of distribution in the Tuscola county probate court. Clearly the absolute ownership was more valuable than a life estate, even though if occasion so required Sarah Winchell might use some of the body of the estate; and in this there was a valuable consideration for her agreement to make the testamentary disposition of her estate above outlined. In so far as their part of the contract was concerned, it was fully performed by Martha Misner and Roy Winchell when, incident to the 1912 agreement, they gave- to their stepmother a more valuable interest than she otherwise would have received in the W. Dorwin Winchell estate. That was all the agreement required them to do. And in this connection it may be noted that the contract was actually performed, so far as possible at the time, by Sarah Winchell, in that she did make the contemplated will and did leave the will in the custody of the Tuscola county probate court. That, at the time of the trial, there was, to some extent at least, a “present existence of the-subject-matter .of the contract ” or of property received in lieu thereof was not only admitted in the answer of Sarah Winchell, but was established by competent proof. The defendants are not entitled to prevail in consequence of any of the contentions above noted.
On the other hand, the record fully justifies the conclusion that by her course of conduct Sarah Winchell has breached her obligation under the 1912 agreement, and thereby has undertaken to fraudulently deprive plaintiffs of their contractual rights in the property involved. Such is the only reasonable conclusion to be drawn from her having withdrawn her 1912 will from the Tuscola county probate court, from the making of the 1919 will and the will of 1944, the position taken by Sarah ’Winchell in the instant case, and the unwillingness of defendants to disclose the extent of property possessed by Sarah Winchell or the provisions of her present will. CJ early, under such circumstances, plaintiffs are entitled in equity to the injunctive relief hereinafter granted. Otherwise plaintiffs herein will be deprived of .their property rights and left without any adequate or effective remedy. That plaintiffs would be left without any adequate remedy except the same is decreed during the lifetime of Sarah Winchell is obvious because after her death plaintiffs herein could not testify to the matters equally within the knowledge of Sarah Winchell, and the only other parties present at the time and having knowledge of the 1912 agreement were Roy Winchell and the probate judge of Tuscola county, both of whom died prior to the trial of the instant case.
Jurisdiction in equity extends to the prevention of fraudulent conduct of the character disclosed in the instant case, and the equity court will grant appropriate injunctive relief; and having taken jurisdiction will determine all pertinent issues submitted. In VanCamp v. VanCamp, 291 Mich. 688, we quoted with approval from the supreme court of Iowa (Chantland v. Sherman, 148 Iowa, 352 [125 N. W. 87]), the following:
“The situation is somewhat novel, but courts,of equity are not bound to give any stereotyped form. of relief. .They readily adapt the relief to the peculiar facts of the case, and their sole concern is that the decree entered shall effectuate justice.”
From the record before us our conclusion is that plaintiffs are entitled to a decree in this Court which shall provide as follows:
(1) The decree entered in the circuit court , in chancery is vacated.
(2) The bill of complaint is dismissed as to defendants Frank Mixter and Emma Mixter.
(3) That the contract of July 30, 1912, whereby Sarah Winchell agreed to leave to Martha Misner and Roy Winchell five-sevenths of the estate of which she died seized is a valid and enforceable contract, subject as to the _ limitations of amount hereinafter provided.
(4) That subject to Sarah Winchell’s right to possess, manage and control the property of which she became possessed through the will of her deceased husband and her 1912 agreement with Martha Misner and Roy Winchell and subject to her further right to use so much of such property as may have been heretofore or may hereafter be reasonably necessary for her proper maintenance and support, the title and ownership of such property is decreed to be in plaintiffs herein, but with the right of possession deferred until the demise of Sarah Winchell; and the foregoing provision is made applicable to any property held by Sarah Winchell at the.-time of her demise into which the property so received by her in 1912 has been or may hereafter be converted either directly or indirectly. (As to this phase of the instant case, see Hogan v. Hogan, 187 Mich. 278).
(5) Except to the extent that it may be reasonably necessary to provide for the proper maintenance and support of Sarah Winchell, she and her agents, attorneys or other representatives are enjoined from disposing of any of the property designated in the next preceding paragraph by will, gift, conveyance or transfer of any kind unless there is received incident to any transfer or conveyance property of like value; and any will or gift, and any transfer or conveyance to either of the other two defendants in this case, heretofore or hereafter made by Sarah Winchell affecting any of the property mentioned in the next preceding paragraph is decreed to be null and void in so far as its terms contravene the said 1912 agreement.
(6) The decree will further provide that the provisions thereof shall not apply to any property of which Sarah Winchell is now or may hereafter be possessed in excess of an estate of which five-sevenths would be equal in value to the property received by Sarah Winchell either through the will of her deceased husband or the 1912 settlement agreement, the value of the property so received by her being hereby fixed as $5,298.
A decree may be entered in this Court in accordance with the foregoing; but since neither the plaintiffs nor the principal defendant Sarah Winchell have fully prevailed and since as to the other defendants their case has been presented by the same counsel and on the same brief as that of Sarah Winchell, no costs will be awarded.
Btjtzel, C. J., and Carr, Bushneil, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred.
See 3 Comp. Laws 1929, §13117 (Stat. Ami. § 26.922). — BePOBTER.
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Btjtzee, J.
Act No. 27, Pnb. Acts 1944 (1st Ex. Sess.) (Stat. Ann. 1945 Cum. Supp. § 13.790 [21] et seq.), provides for the acquisition and development of recreational facilities for park purposes in several defined areas in Michigan and specifically appropriates the sum of $1,000,000 for the acquisition of property in the Porcupine Mountain' area consisting of certain large tracts of land in Gogebic and ■ Ontonagon counties. The instant suit was brought by the commission of conservation of the department of conservation of the State of Michigan, plaintiff, for the purpose of condemning some of the property in the Porcupine Mountain area owned by the Connor Lumber & Land Company, a corporation, and Gordon Connor, the defendants herein. As no question is raised as to the legal right of plaintiff to seek condemnation of the property, we shall not discuss the various acts’ by virtue of which plaintiff has brought these proceedings. We limit our discussion exclusively to the questions raised by appellants.
The testimony discloses that the Porcupine Mountain area sought by plaintiff for park purposes is one of the most beautiful tracts of land in the United States. One witness described its unsurpassable scenic beauty as rivaling that of Switzerland. Its recreational and educational facilities are described by witnesses in unmeasured terms. It is sought in the present case to expropriate 4,590.79 acres of property on which there is a solid stand of timber. Defendants own the fee to 2,466.82 acres of this property together with the water fiowage ■ rights in the Presque Isle river, the riparian rights thereof and a railroad bridge crossing it, also such portion of defendant corporation’s logging railroad as extends over a small portion of the property. Defendants own the timber rights on the remainder of the property consisting of 2,123.97 acres, the fee of which is in the Keweenaw Land Company. According, to Act No. 27, supra, the entire park as contemplated , will have approximately 43,000 acres, the larger portion of which is located in Ontonagon county. A solid stand of virgin timber covers the property of defendant corporation. It is one of the few remaining stands of such size in Michigan. The timber consists largely of hemlock and to a lesser extent of various kinds of hardwood. Defendant Gordon Connor owns 154.80 acres of timbeiiand in Gogebic county which plaintiff also seeks to acquire in this proceeding.
In the original petition filed, 299.15 acres in Ontonagon county were included but, by appropriate amendment, were excluded on motion at the hearing of the case. By another amendment and motion, the 154.80 acres of defendant Gordon Connor in Gogebic county were included.
Defendants’ witnesses were in accord with those of plaintiff as to the beauty,of the proposed park and many of its advantages; but they stoutly maintained throughout the entire proceedings there was no need whatsoever to include in the proposed park defendants’ stand of timber for the logging and lumbering of which, as well as for other stumpago, defendants had constructed many facilities at considerable expense. In addition to the extension of the logging railroad and the building of a bridge, defendant lumber company owns a lumber camp on the property and a large sawmill some 15 miles distant from the property sought to be condemned. Defendants further claim that there can be but little permanence to much of the timber on the property sought to be condemned as the timber is ripe for harvesting and some of the trees are rotting. Defendants contend, however, that a salvage can be obtained from the rotting trees if they are cut within a reasonable time. Defendants further show that the property is over 15 miles distant from the Porcupine Mountains. They.contend that a very wide strip of virgin timber on each side of the roadway running through the property would more than suffice for educational and historic purposes. Plaintiff, however, claims that defendants large stand of virgin timber has great historic value, will demonstrate a basic industry of northern Michigan, and will attract a large number of tourists to this forest part of the park. Plaintiff showed that part of the property fronts on Lake Superior, and includes the picturesque Presque Isle river and gorge. In the last analysis, the question of necessity of expropriating defendants’ property was one for the jury. Each side presented a long array of exceptionally well-qualified witnesses. The jury found for necessity. Its verdict is. sustained by the evidence.
The jury awarded defendant lumber company the sum of $211,872.30, and defendant Gordon Connor $4,774.10, as just compensation for the taking of their properties. Defendants raise many other questions on appeal.
(1) Appellants claim that the court and jury did not have jurisdiction to determine the question of the necessity of establishing the proposed park without including all other owners of property within the area of the proposed park. This would mean joining a large number of owners of property in Ontonagon county in a suit brought in Gogebic county. The acreage of defendants is slightly over 10 per cent, of the entire acreage proposed for the park. Defendants’ property adjoins a county park. A roadway runs to and through, the property and while it undoubtedly would be desirable to combine all parts of the park, the value of a 43,000 acre park is not destroyed because adjoining’ acreage also described in Act No. 27, su,pra, is not obtained in toto or in one proceeding for park purposes. In fact, if the various large areas devoted to park purposes are joined together by a roadway or a still wider strip of land, their particular value or that of the park as a whole is not destroyed. In the original petition it was sought also' to condemn 299.15 acres of adjoining timberland belonging to the defendant company and situated in Ontonagon county. When the attorneys for plaintiff moved to amend the petition so as to exclude the Ontonagon county acreage, defendants’ attorney not only did not oppose the motion, but on behalf of defendants intimated that there would be no necessity for a further condemnation proceeding in Ontonagon county and that the same measuring stick might be used in arriving at the value of defendants’ property in Ontonagon courts as would be determined in the instant suit to condemn the Gogebic county property. Defendants, however, now take the position that the court had no jurisdiction to condemn only part of the property designated in the statute, Act No. 27, supra, for the proposed park. In 1 Comp. Laws 1929, § 3766 (Stat. Ann. §8.14), in providing for condemnation by State agencies and public corporations, it is stated that the necessary proceedings should be instituted in the circuit court of the county where the private property sought to be taken is located, et cetera. If full credence were given to the testimony of one of the witnesses of 'defendants that the value of their properties sought to be condemned in this proceeding were worth in excess of one million dollars, when and if converted into lumber, and this were the proper method of evaluating the timber, it would follow that no other property than that of defendants could be acquired at the present time, as the appropriation under Act No. 27, supra, for the entire area consisting of approximately 43,000 acres is only one million dollars.
Defendants call our attention to the case of City of Allegan v. Iosco Land Co., 254 Mich. 560, where proceedings were brought under 1 Comp. Laws 1929, §3784 et seq. (Stat. Ann. § 8.41 et seq.), a different act, by virtue of which proceedings were brought to acquire property for building a dam and acquiring the flowage rights over 1,500 acres of land. The Court properly held that this was an indivisible undertaking. It could serve no purpose to condemn only part of the property which would be useless unless the balance of it were also expropriated. Other cases cited by defendants likewise are distinguishable.
In the present case, it was stated that negotiations were under way to ' secure without condemnation proceedings necessary tracts in the park area, that the State already owned 1,000 acres of the proposed tract in Ontonagon county, and that it had or was arranging for the exchange of other lands owned by the State for a very large acreage in the proposed park area in Ontonagon county belonging to Federal and State agencies, as well as others. The present suit would not preclude bringing other condemnation suits if it became necessary. It was proper to exclude the portion of the property in Ontonagon county as described in the original petition. It was not necessary to include all the property as set forth by Act No. 27, supra, in the present proceeding. Defendants’ claim of a jurisdictional defect has no merit. See In re Petition of City of Detroit for Condemnation of Lands for Airport, 308 Mich. 480, and In re Huron-Clinton Metropolitan Authority’s Petition as to Belleville Lake Park Project, 306 Mich. 373, for authority to exclude certain parcels from a pending condemnation proceeding.
(•2) Defendants claim that the verdict was fatally defective in not first determining the question of necessity of establishing a public park.. All parties agree that the mere statutory authorization for such a park is not determinative of the question of necessity. The judge specifically instructed the jury in no uncertain terms that it was necessary for them first to determine whether or not there was a public necessity for a park of the kind and character proposed, and second, if such public necessity were found, then to further determine whether or not it was necessary to include in such proposed park all or any part of the property of defendants as described in the petition and shown on the various maps received in evidence. He also instructed them 'that they could designate what, if any* portion of defendants ’ property was necessary for park purposes. The judge further cautioned the jury that they were not to be influenced by the fact that plaintiff desired this property for park purposes or that by resolution it had declared that it be acquired for the public, or that an appropriation had been made by the State legislature for the acquisition of such property. He also instructed the jury that if they decided it was necessary that the State have a park such, as proposed, and that it was necessary to include in such proposed park the whole or part of defendants’ lands, then they would have to determine what should be paid defendants as just compensation for the property which they determined it was necessary to take.
Defendants contend that the form of the verdict furnished to the jury did not provide for answers to these questions. The form contained the questions and with blank spaces for the answers to be filled in by the jury. Part 1 reads as follows:
“We find that it is-necessary to take defendants’ private property for the proposed park improvement. ’ ’
The jury could either leave the space blank if they found necessity, or insert the word “not” if they found otherwise. Part 2 provided a blank space in which the jury was to fill in the answer to the question, what lands of the defendants did the jury find necessary to include in the proposed park. Parts 3 and 4 provided that if the jury found in answer to the foregoing questions that it was necessary to include any part of the lands of the defendants, then they were to fill in the blank spaces left for the insertion of the sums to be paid to defendants as just compensation for such property.
Unfortunately the form of .the proposed verdict is not in the printed record, but it is included in the return to the Supreme Court from- the clerk of the circuit court. We have examined the form and it appears, as claimed by appellee in its brief and not denied in defendants’ brief, that the form of the verdict as submitted to the jury was prepared by defendants. It is typewritten and bound with a cover entitled “Form of Verdict,” with the names and addresses of appellants’ counsel printed at the bottom of the cover. It did contain some other questions but they were struck out with a pencil. Evidently the form of the verdict was carefully considered. The printed record discloses no objection to the form of the verdict at the time of its submission to the jury. Such objection appeared for the first time in defendants’ assignments- of reasons and grounds of appeal. The defendants evidently regarded the answer to the first question as to whether or not it was necessary to take defend-, ants’ private property for the proposed park improvement as determinative of the necessity of the public improvement itself. Under the circumstances, their objection, even if it has any merit, comes entirely too late. A timely objection might have resulted in submission of the question-before, or at the time, the jury brought in its verdict in a form possibly more satisfactory to appellants’ counsel. In re Jeffries Homes Housing Project, 306 Mich. 638, 647, we stated:
“Some of the appellants further claim that while the jury found that it was necessary to take the property, it did not find that it was necessary to make the improvement. The judge instructed the jury that if they found from the evidence presented that there was insufficient evidence to find a verdict of necessity, then the verdict must be of no necessity; that in determining the question of necessity, the jury must find whether or not the project was necessary, not whether it was necessary to take the land for the proposed project; that if it found that the construction of the project at the present time was not a public necessity, the verdict must be one of ‘not necessary.’ We believe the jury was not in any way misled, and that their verdict covered both the necessity for the improvement as well as for the taking of the particular properties.. The form of the verdict followed the statute, 1 Comp. Laws 1929, § 3794 _(Stat. Ann. § 8.51), and was approved in Re Widening of Harper Avenue, 237 Mich. 684.”
(3) Defendants, on a motion for a new trial, further claim error because the jury did not have ample opportunity to examine the very large tract of property in the one day devoted to'that purpose. Gordon Connor, who- is also manager of the Michi gan division of the Connor Lumber & Land Company, accompanied the jury. He made no objection to the fact that the jury’s inspection of the property was limited in space and time. There is no proof that the timber differed in character from that inspected by them, nor was it shown that the jury could have accomplished more by the meticulous examination of more trees. The quantities were testified to by the witnesses of the respective parties, who were not all in agreement. A more careful examination by the jury, in all probability, would not have enabled them to estimate the correct quantity of timber. Defendants, however, claim that inasmuch as under the law the members of the jury may largely use their own judgment in evaluating property, they should have had more time to examine it.' Criticism was also made as to the character of the jury, it being claimed that its members did not consist of persons who had knowledge of timber and for that reason a further examination of larger sections would have been helpful. The questions in a condemnation suit are resolved by a jury of 12 freeholders residing in, the vicinity of the property. Article 13, §§ 1 and 2, Constitution of the State of Michigan. Appellants make no claim that they were precluded from participating in the selection of the jury. Appellants claim that freeholders in the vicinity of the property would not know any more of. its value than a city resident would know of a manufacturing industry for which the city might be famous. As we shall later show, appellants argument would have more force were the method and cost of manufacturing lumber something for the jury to consider. , Such objection of appellants even if it had any merit came too late. Their counsel, if dissatisfied, should have made timely objection or moved the court that the jury visit the área not covered on their, first visit, or revisit it for a longer period.
(4) Defendants further contend that the proceedings were fatally defective because by a number of amendments certain property and rights were excluded after appropriate motions were duly made by plaintiff and granted by the court. Defendants claim that such property and rights could not be excluded without the official act of the commission of conservation. The motions as granted provided that there be excluded from expropriation and there be reserved to defendants: (1) the metallic mineral rights; (2) a logging camp; (3) water power, flow-age and riparian rights; (4) easements over the existing lumber railroad and bridge; (5) and an easement for the extension of the lumber railroad so as to reach other property of defendants if they so desired. A motion was also granted for the inclusion of 154 acres of land, belonging to defendant Gordon Connor, to which we have hereinbefore referred.
Act No. 149, Pub. Acts 1911 (1 Comp. Laws 1929, § 3774 [Stat. Ann. § 8.22]'), makes liberal provision for amendments in form or substance at any time after, as well as before, judgment confirming the verdict of the jury whenever the amendments will not interfere with the substantial rights of the parties. Defendants make no claim whatsoever that the amendments were to their detriment. They made no specific objection to them. In fact, counsel for defendants assisted in defining' the railway right of way covered by the motion. On the motion to exclude the water rights, attorney for the defendants objected to the fact that the amendment was not broad enough so as to reserve riparian rights to defendants, and the amendment was then redrafted so as to meet the approval of counsel for defendants. They now object to the regularity of the entire proceedings on the ground that the amendments were not made by the commission of conservation. It must be presumed that when the attorney general or his assistant appears for a public agency, he acts within the scope of his authority in amending a petition which was signed on behalf of his principal in the first instance. One of the most important amendments made referred to excepting water rights and the assistant attorney general stated that he had been authorized to exclude the water rights.' The other amendments were for defendants’ benefit without in any way.detracting from the value of the properties for park-purposes. By the amendments defendants retained full uge of certain facilities erected on the' property so as to assist in the removal of their timber outside the park. area,. They kept other rights in the park area which are of great value, The retention of all these rights and easements by defendants undoubtedly tended to reduce the amount of the compensation they would otherwise be entitled to. Because defendants had not anticipated that the water rights would be excluded and, therefore, at some expense had brought an expert witness to testify to their value, the court properly allowed defendants a fee of $1,000 to be paid irrespective of the outcome of the case. Defendants’ claims of error in regard to the amendments are of no merit.
(5) Defendants claim that there should have been included in the amount of compensation they were entitled to, not only the value of the property taken, but also defendants’ expenses for preparing and establishing their defense in court. Defendants call attention to certain cases from other jurisdictions. Plaintiff denies that these cases uphold defendants’ contentions. It would serve no useful purpose to discuss tlie cases. The law of Michigan does not provide for payment of more than the taxable costs. Expenses such as are claimed by defendants are not embraced within the terms of just compensation for land taken by eminent domain. Dohaney v. Rogers, State Highway Commissioner of Michigan, 281 U. S. 362 (50 Sup. Ct. 299, 74 L. Ed. 904, 68 A. L. R. 434).
(6) Defendants now complain that the verdict of the jury was,fatally defective because it did not set forth the separate items of damages claimed by defendants, but only designated a lump sum as com-, pensation. They do not point to any statute that necessitates such itemization. The record does not show that in proposing the form of the verdict defendants requested any ‘ findings as to separate items of compensation. The objection, if it had any merit, comes too late.
* (7) Appellants claim that the amounts of the awards are inadequate and below the minimum amounts established by any competent testimony. The case followed the pattern so frequently found in condemnation cases-. The plaintiff produced experts who placed a low but possibly a true valuation on the property, while the defendants’ experts placed it at an exceedingly high but possibly true, figure. In this instance defendants’ leading witness placed what evidently appeared to the jury- as such an extravagantly high figure that they may have resented it as overtaxing their credulity. It would be interesting to speculate upon the various factors that influence the minds of jurors in arriving at a verdict. This we cannot do. Appellants criticize the power of a jury in making their own determinations of value from the evidence and their own observations. While the condemnation procedure has been described as archaic and unjust and some futile efforts have been made to change it (see Report of the Judicial Council of Michigan, January, 1931), we follow it as prescribed by the Constitution and statutes. It still is in the nature of an inquest. The jury is the judge of both law and fact, and a verdict will be upheld in this Court if it is supported by competent evidence as long as the amount is not lower than the minimum, or higher than the maximum valuation placed by the witnesses on the property sought to be condemned.
(8) Before discussing the conflicting testimony in regard to values, we shall briefly review some of the cases in this State. ‘ In Re Brewster Street Housing Site, 291 Mich. 313, Mr. Justice Potter discussed the subject very fully. He stated therein at page 343:
“It is contended, however, the trial court erred in its rulings upon the admissibility of testimony. Proceedings for the condemnation of property are not tried before, a court. The constitutional tribunal here involved was a jury of 12 freeholders residing in the vicinity of such property. They were charged by the Constitution of this State .with the duty to' determine whether there was a necessity for using, such property sought to be taken, and if they found there was a necessity for taking such property for a public use, to fix the just compensation to be made therefor. This ■ seems plain from article 13, § 2) Const, of 1908. Proceedings under this section of the Constitution, therefore, will not be reviewed in the same manner as if the proceeding were one tried before a court and jury according to the course of the common law. ’ ’
This was followed by a long list of authorities and excerpts from opinions of this Court. He also stated in Re Widening of Michigan Avenue, Roosevelt to Livernois, 280 Mich. 539, 547:
‘ From the very nature of the constitutional provisions, the jury is judge both of the law and facts. * * * •
“The proceedings, being inquisitorial in nature, the jury is not limited to the testimony introduced by the respective parties, but may view the premises. * * *
“The jury may listen to.the opinion of witnesses, their estimates of value and their methods of arriving at the conclusion expressed. But the jury is not bound-by the testimony alone. They are to exercise their judgment, based not only upon the testimony but their own knowledge gained from a view of the premises. They are not,to be interfered with or dictated to by the judge. ’ The jury are judges both of the law and facts. * * *
“Many technical rules have been promulgated for determining value, none of which is important. The determination'of value is not a matter of formulas or artificial rules, but of sound judgment and discretion based upon a- consideration of all the relevant facts in a particular case.”
There seems to have been but little dispute over the claim that the land shorn of the timber was worth $1.75 per acre. The witnesses for the respective parties, however, are in total disagreement both as to the correct quantity of the timber and the amounts to be awarded defendants as just compensation. There are many facts indicated by the record that they may have influenced the jury. The attorney for defendants in his opening address characterized the timber as “mature,” and stated that “it has reached its growth,” that “a goodly portion of it has outlived its span of life, is dying, ’ ’ and that “too many of the trees are past harvest-time.” The respective parties employed well qualified cruisers of experience and standing. Those for plaintiff testified there were 37,856,000 feet of timber, while those for defendants claimed there were 55,288,000 feet, a difference of over 17,000,000 feet. Possibly the cruisers for plaintiff left out dead timber for which defendants claim some value. ■ The question of the amount of timber was one of fact. The jury evidently believed the cruisers for plaintiff.
The testimony as to what sums should be awarded defendants for just compensation is in still greater conflict. Testimony was given in regard to other factors which defendants claimed enhanced the value of the timber. The value of the railroad bridge spanning the Presque Isle River was set at $25,300. Under the amendment defendants retained an easement in the bridge. Defendant lumber company owned in all 14,224.54 acres of contiguous timberland in this particular location so that the 4,590.79 acres sought to be taken in the .present case amounted to 37.7 per cent, of the total volume of timber in defendants’ acreage. The railroad was valued by witnesses at $172,396.53. Only three miles of the roadbed extends over the property herein involved. The balance of the roadbed and tracks extending over the other property belonging to the lumber company was valued at $137,896.53. An easement in the railroad over the three miles was retained by defendant company by the amendment. It can readily be seen that the jury may have placed very little, if any, value on the bridge or railroad in which defendant retained full use. The jury may have questioned to what extent defendants were being deprived of anything of real value under the circumstances. Defendants claim that they should have been fully compensated for the bridge, the three miles of railroad, and also 37.7 per cent, of the value of the balance of the railroad on property retained by defendant. The defendant company owns a sawmill at Connorville, Michigan, about 15 miles from the area sought to be condemned. It asserts its value is $150,000, and contends that inasmuch as plaintiff is taking 37.7 per cent.'of defendants timber or stumpage in this particular locality, it should also pay 37.7 per cent, of the value of the sawmill, claimed to have been built to convert the timber from this particular property. It is not shown that the company cannot use the sawmill to convert other logs which it may own or may acquire from others, in addition to the 9,633.75 acres it still will have left in this particular area after the condemnation proceedings. It is not shown that the sawmill cannot convert timber for others or that it cannot be dismantled and a large salvage obtained.
. The testimony developed the fact that the defendants derived the title to the timber property from the R. Connor Company. In 1932, the latter company was taken over by a creditors ’ committee. The sawmill was completed in- 1935. Both companies were forced into bánkruptcy and sought reorganization under section 77b of the national bankruptcy act in 1935. The jury may have considered also that the sawmill was over 10 years old, had continued in operation during that time and was able to get a supply of logs to manufacture into lumber. The jury may not have allotted any compensation for this sawmill. The business misfortunes of defendant company may have been due to an expansion greater than its capital would permit, as claimed; nevertheless, the jury may also have been impressed with the belief that the lumber business might not be as profitable as defendants’ witness claimed it would'be. Defendant itself brought out the facts relating to the bankruptcy proceedings.
In 1941, defendant lumber company deeded 63.93 acres of the timberland to the board of county road commissioners for the sum of $3,194.58, or for less than $50 an acre. This, however, sets no criterion of value as the lumber company retained certain ease ments, e.g., the right to cut the timber, and received the benefit of a road to be opened by the county. A map of the property shows a road near the railroad right of way. One of the plaintiff’s witnesses testified that the logs could be moved by truck over the road or by water. The record does not show when the road was built, but the jury may not have been impressed with the value of the three miles of railroad by reason of the availability of the road and also because the lumber company retained an easement in the railroad.
What may have also impressed the jury was the lumber company’s annual report to the Michigan Corporation & Securities Commission for the year ending August 31, 1942. In this report the company, a Wisconsin corporation, segregated its property in Michigan from that in Wisconsin. In addition to its cash, receivables and large inventories, it stated its other assets in Michigan consisted-of “property under contract,” of the value of $703,794.81. It had purchased this property on contract from the R. Connor Company. Apparently the sawmill now claimed to be worth $150,000, the bridge and the entire railroad now claimed to have a value of $197,696.53, were included. Thus, if the company owned no other property in Michigan this would leave the timberlands valued at approximately $356,000, 37.7 per cent, of which would be considerably less than the jury awarded defendant company. The record, however, shows that the company was conducting two logging operations in Michigan. We do not believe, therefore, that this annual report is conclusive proof of value; but it may have had some probative force with the jury.
Appellants base their claim of error largely on the allegedly improper method used by plaintiff’s expert witnesses in evaluating the stumpage, which, it is claimed, did not make sufficient allowance, if any, for the bridge, the three miles of railroad, et cetera. They contend that these facilities together with the sawmill, not too far distant from the area involved, gave the stnmpage an enhanced value to .the defendants, and that this was not taken into consideration by plaintiff’s witnesses or the jury. The facts and claims were fully brought out by witnesses for defendants. Just what consideration the jury gave to them or how much they allowed because of them we cannot tell from the lump sum awarded by the. jury.
(9) Appellants claim that the jury did not follow the judge’s instructions in determining the just compensation by finding the value of the stumpage through the process of ascertaining the value of the lumber manufactured at the sawmill and then deducting the costs of manufacture, et cetera. In this regard, the judge’s charge to the jury was far more favorable to defendants than they were entitled to. ■The question was what the stumpage was worth, not what it would be'Worth if and when converted into lumber at defendants’ sawmill, or what-would be realized for the lumber if sold for packing cases or other lumber products to the government or any other purchaser.' This would be entirely too speculative and remote. The testimony in the instant case showed the great uncertainties in the lumber market and that at times the lumber business had been very unprofitable. The testimony did ascribe a distinct value to timber. The jury may have taken into consideration some of the extra elements of value defendants contend for, but no error can be claimed if the jury did not consider the valuation problem in terms of timber converted into finished lumber.
“If the land taken has a higher market value by reason of the minerals it contains, or by reason of a use or uses for which it may he adapted, but to which it has not been put, the owner is entitled to the market value as so enhanced. But if there is a market value, nothing more than that'can be recovered, and the fact that the owner may have contemplated putting his land to some use, in the future, for which it-may have been worth more than it would bring in the market at the time it was appropriated, does not justify an assessment of damages in excess of the market value at the time of its appropriation.” Alberson Cemetery Association v. Fuhrer, 192 Ind. 606 (137 N. E. 545, citing R. C. L.).
In City of Detroit v. Hartner, 227 Mich. 132, we quoted the correct rule as stated in Pennsylvania, S. V. R. Co. v. Cleary, 125 Pa. 442, 451 (17 Atl. 468, 11 Am. St. Rep. 913):
' “It is proper to consider for what purpose it may be used to advantage, in order to determine for what price it will sell. It may be salable as a site for the erection of a hotel, a factory, a dwelling hpuse or a wharf, but it is not proper to lay before the jury proof of what the hotel or other structure would cost, together with proof of the value of the lot with such structure upon it, and treat the difference between these sums as the value of the lot. Such method would be speculative and fanciful. Equally improper is evidence shoeing how many building lots the tract under consideration could be divided into, and what such lots would be worth separately. It is proper to inquire what the tract is worth, having in view the purposes for which it is best adapted, but it is the tract, and not the lots in which it might be divided, that is to be valued. * * *
“The jury are to value the tract of land, and that only. They are not to determine how it could best be divided into building lots, noj conjecture how fast they’ could be sold, nor at what price per lot. A speculator or investor in deciding what price he could afford to pay, would consider the chances and probabilities of the situation as then actually existing’. A jury should do the same thing’. ’ ’
The value of timber may be reflected in the lumber ■market, but the results of a manufacturing process and current sales of converted timber are too remote for purposes of evaluating timberlands.
Many other criticisms are leveled against the testimony of plaintiff’s witnesses. Almost all the witnesses who testified to the value of the stumpage were experienced woodsmen or men well qualified to give their opinions as to timber values. Appellants particularly complain of the testimony of Donald M. Mathews, professor of forest management at the University of Michigan, which position he has held for many years. He had long years of experience throughout the country and had done logging cost work for many large concerns. It is very possible that his testimony had much weight with the jury. He testified on rebuttal that the estimated value of the timber should be discounted 30 per. cent.' because of the number of years it would take to harvest it and the attendant risk and loss during these years. When asked how he arrived at this figure, he replied that he took into consideration the possibility of the market receding, or labor costs rising, and loss of timber through fire. He testified on cross-examination that this was merely a matter of-opinion, and when asked by defendants’ counsel, “Picked it put of the air?”, he replied in the affirmative. He stated that over a term of five years, $262,650, would be realized, and that after deducting the 30 per cent, discount the net present worth would be $183,855. He found that the value per acre was $50 to which he added $7.88 per acre for the bridge and main line of the railroad east of the bridge and $2.46 per acre for the last three miles of main line of the railroad west of the bridge, which part was located on the property being condemned.
"Witnesses for both plaintiff and defendants testified, that the logs should be harvested over a period of years. Another witness in referring to Gordon Connor’s acreage stated that current- stumpage prices should not be used as they were not justified, that the bulk of the timber could not be logged within the next 12 months; that if he were the buyer, he would take eight years to harvest the timber, and that he believed a 40 per cent, discount should bo allowed to take care of the element of risk.
Another witness for plaintiff, after application of the 30 per cent, discount but adding, however, $25,300 for the bridge, $4,316.94 for the lumber company’s land and $270.90 for Gordon Connor’s land, stated that defendants were entitled to a joint award of $177,794.34, instead 'of $216,646.40, the amount awarded by the jury. One witness, defendants’ accountant, -calculated that over a four-year period of operation, defendants would be entitled to $1,183,380, subject to a small discount. Thi's claim and the 1942 annual report filed with the Michigan Corporation & Securities Commission may well have persuaded the jury that defendants’ figures were so inflated they could not be relied upon. A real estate dealer, who had some experience in logging and professed knowledge of the value of stumpage and who had negotiated the sale of other stumpage at or near the area involved, placed the value of the lumber company’s acreag-e at $40 an acre, and Gordon Connor’s acreage at $27.50 per acre. He did not discount these figures on account of the element of risk. Another witness placed the value at $40 to $45 an acre, and stated that he did not take the railroad into consideration, as there was a good truck road, a gravel road, and the lake by which the lumber could be transported at considerably less expense. Defendants’ witnesses placed a much higher valuation on the property.
The testimony of- the various expert witnesses applies with equal force to the acreage of Gordon Connor. There was no road or railroad extending to his property, although logs could be transported by water. The acreage contains a comparatively small volume of merchantable timber. He did not intend to harvest it for a number of years. The award was within the valuation placed upon it by plaintiff’s witnesses.
It would serve no useful purpose to discuss in greater detail the conflicting testimony set forth in a four-volume record, which we have carefully reviewed, except to state that witnesses for defendants placed a much higher valuation on the property, and particularly stressed the consequential damages defendants would sustain because of their superior facilities for transporting the logs and converting them into lumber. However, the verdict of the jury was sustained by the evidence. Plaintiff concedes that present stumpage values are not subject to discount, and that to determine such values the price obtainable for logs must be considered. Even though we disregard the testimony in regard to the element of discount, according to the testimony of two witnesses the value of the land and the timber is less than the amount awarded by the jury. We are bound by the jury’s verdict although some of us might have awarded a larger sum to defendants.
(10) There are a number of guiding principles set forth in previous decisions of this Court that we hear in mind in coming to our conclusions in the instant case. ¥e do not hear an appeal from a judgment in condemnation proceedings de novo. In re Petition of City of Detroit for Park Site, 227 Mich. 132. An award made by a jury in condemnation proceedings should not be set aside, even though this Court would have made a larger award had it been trying the cause, where the award made is within the evidence which differed widely. Commission of Conservation of Department of Conservation v. Hane, 248 Mich. 473. In re Jeffries Homes Housing Project, supra. Condemnation proceedings are inquisitorial in nature and the jury is the judge of law and fact. Its conclusions need not be based entirely on the testimony but it may use its own judgment and knowledge from a view of the premises and its experience as freeholders. In re Parkside Housing Project, 290 Mich. 582. In re Widening of South Dix Avenue, 262 Mich. 233; Ontonagon R. Co. v. Norton, 236 Mich. 187; In re Widening of Bagley Avenue, 248 Mich. 1; In re Jeffries Homes Housing Project, supra. We stated in Re Owen and Memorial Parks, 244 Mich. 377, 379 (61 A. L. R. 190):
‘ ‘ But in condemnation proceedings the trial judge has not the power of control * * * possessed by the trial judge in common law actions. He may, of course, confirm or set aside the award reported to him, but he cannot give binding instructions, and the jury is the judge of both law and facts. * * * Under our Constitution, the question of necessity as well- as that of compensation is -committed to the jury, and the jury reach their conclusion. on both questions guided by their views of the law as well as their view of the facts. * * * If the right there secured (under the Constitution)- of a trial of both questions involved in condemnation pro ceedings by a jury is to be maintained, it must be maintained in its entirety; a jury may not settle one of tbe questions and tbe trial judge the other, if constitutional rights are to be observed.”
We affirm the judgment on the awards as found by the verdict of the jury, with costs to plaintiff.
Carr,, C. J., and Btjshnehl, Sharpe, Boyles, Reid, and North, JJ., concurred. Dethmers, J., did not sit.
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Boyles, J.
This is a suit in assumpsit brought by the Hawkeye Casualty Company, as assignee of thé United Automobile Insurance Company, of Grand Rapids, Michigan, against Dorr W. Frisbee, its general agent, to recover the amount paid by plaintiff to one G. Floyd Bradley and his attorneys, to satisfy a judgment against one 'Dr. Holcomb, the insured, on a policy of automobile insurance issued in the Grand Rapids company by the defendant as its agent. The essence of plaintiff’s claim to recover this amount from' Frisbee is' that Frisbee failed to send to the company the “daily report” required by his agency contract, showing the issuance of the Dr. Holcomb policy, until after Dr. Holcomb had been involved in an automobile accident resulting in fastening liability on the company. The case was heard without a jury, by the circuit judge who held that the defendant was not liable and entered judgment accordingly, from which the plaintiff appeals.
■Hawkeye Casualty Company, the plaintiff herein acquired the assets and assumed the liabilities of the United Automobile Insurance Company, of Grand Rapids, Michigan, in February, 1939. The transactions which gave rise to the litigation in the instant case occurred between the United Automobile Insurance Company, of Grand Rapids, hereinafter referred to as the Grand Rapids company, and Dorr W. Frisbee, the defendant herein. No question involving the legality of the transfer from the Grand Rapids company to plaintiff Hawkeye Casualty Company has been raised.
At the time the transactions here involved were taking place, Frisbee had been engaged in the insurance business in Detroit for upwards of 15 years and was operating a large agency. In the latter part of March, 1938, the president of the Grand Rapids company went to Frisbee’s office in Detroit, and as the result of their conference an oral arrangement was entered into whereby Frisbee became the general agent of the company in Wayne county. Frisbee agreed to represent the company, solicit and write automobile insurance business and issue policies. It is disputed whether anything was said on that occasion about the sending of a daily report to the company. Frisbee started to write automobile insurance for the Grand Rapids company, and prior to April 9th had issued five policies. One of them was the policy which gives rise to this litigation, issued by Frisbee on April 2, 1938, to Dr. Clayton E. Holcomb and Helen E. Holcomb, effective on that date. These five policies were the only ones ever issued by Frisbee for the company. Under date of April 9th a written agency contract was entered into between the Grand Rapids company and Frisbee. The material part of this contract, in so far as it applies to the issue before us, is as follows:
“7. Party of the second part (Frisbee) agrees to forward immediately to party of the first part all applications for' insurance secured or copies of dailies or policies written.”
Prior to April 2d, the day on which Frisbee issued the automobile policy in question to Dr. Holcomb, one of Frisbee’s solicitors, a Mr. Hambly, had written an automobile insurance policy for Dr. Holcomb which, however, was not written through the Frisbee agency. It was placed with the Citizens Mutual Automobile Insurance Company, through another agency represented by Mr. Hambly. Mi\ Hambly had taken over the business of another agency when it was closed out, while he also had a very substantial volume of business through the Frisbee agency. 'The Frisbee agency at that time also wrote policies in the Citizens Mutual, for 'which company Frisbee had also been an agent tor a number of years. Dr. Holcomb’s policy in the Citizens Mutual had been canceled by that company prior to April 2d, .for accident frequency. This fact was known to Mr. Frisbee as well as to Ms said solicitor, Mr. Hambly.
Prior to April 2d and as early as March 18th the Grand Rapids company had information in its files to the .effect that Dr. Clayton E. Holcomb was an undesirable risk. On March 18th the Grand Rapids company had- received notice from its Underwriters Service Association that Dr. Holcomb had had auto- . mobile insurance coverage canceled by two other automobile insurance companies, the “Ohio Cas” and “Wolverine Mut,” for accident frequency. Also prior to April 2d Mr. Hambly, the solicitor for Frisbee who wrote the policy here under consideration, had renewed a policy for Dr. Holcomb in the Citizens Mutual, which he knew had been canceled by the Citizens Mutual on account of Hoi .comb’s accident frequency' record. All this was known to Mr. Hambly when he discussed Holcomb’s automobile insurance matters with Frisbee. Frisbee admits that he knew of Dr. Holcomb’s unsatisfactory accident record, but nevertheless concluded to write the policy here involved, in the Grand Rapids company. Frisbee testified:
“Dr. Holcomb’s business was discussed with me prior to the date of* this daily, April 2d. In this discussion I determined whether or not it was business that should be accepted. I had a long discussion with the solicitor and Mr. Hambly prior to the acceptance of that business. * * * Morton D. Hambly had been a solicitor of ours for quite some period of time before this transaction. In the course of his business he acquired the Proctor Agency that I have spoken about, but took over that business directly, writing' it directly through the Citizens’ Mutual Insurance Company. But he continued, in spite of the acquisition of that business to write through our agency. He came to see me with Dr. Clayton E. Holcomb’s insurance policy before I placed it with the United Automobile Insurance Company and told me that the Citizens’ Mutual of Howell either had cancelled or were about to cancel. He came to my office and discussed with me the acceptance of the Dr. Holcomb risk.
“I was going to put it in the United Automobile from the very beginning if I wrote it. If we accepted it we would have put it with the United Automobile. ’ ’
The Citizens Mutual Automobile Insurance Company had canceled the Holcomb coverage on March 16th, “because of the assured’s frequent accidents.” Seven accident claims had been presented, two of which were pending on that date. Frisbee admits that he knew of such cancellation when he wrote the Holcomb policy on April 2d. In explanation, he testified:
‘ ‘ I assume as other companies do that the United would make the usual investigation on the credit report method. ’ ’
It is not clear how Frisbee could “assume” that the Grand Rapids company “would make the usual investigation on the credit report method” in regard to the Holcomb risk, without having been advised that he, Frisbee, had written a policy in that company. Frisbee failed to give this information to the company until May 14th, the next day after liability had been incurred on the policy. His only excuse for such delay was that it was due to confusion and pressure of business in his office. Frisbee testified:
“I don’t think they would have had any way of knowing that we wrote any policies specifically until they received the daily, unless we discussed the risk with them.”
Admittedly Frisbee did not notify the Grand Rapids company of the issuance of the Holcomb policy by him or discuss it with the company until May 14th, the day after Dr. Holcomb had been involved in a serious automobile accident.
As hereinbefore stated, the written agency contract entered into between the Grand Rapids company and Frisbee on April 9th required Frisbee to forward immediately to the company “all applications for insurance secured or copies of dailies or policies written.” A part of the daily report which his agency contract required Frisbee to furnish the company but which was not furnished until May 14th, was:
“No company has cancelled or declined to issue any automobile insurance for the named assured during the past three years except as follows-• __? J
If the Grand Bapids company had been “immediately” advised of the issuance of the Holcomb policy on April 2d, or immediately after April 9th, or advised of the facts and circumstances known by its general agent Frisbee when he issued this policy, the company would have had ample opportunity to cancel the risk at least before May 13th. On that day Dr. Holcomb, driving the insured automobile, became involved in an accident as a result of which ' one Bradley, in May, 1941, obtained a judgment against Dr. Holcomb and Helen Holcomb in the Hnited States district court in Detroit, for $5,000. In the meantime, shortly after the accident on May 13th, the Grand Bapids company had filed a bill in chancery against the Holcombs in the superior court of Grand Bapids, seeking cancellation of the policy issued April 2d by the Frisbee agency, on the ground of fraud, misrepresentation and concealment of material facts, by the Holcombs. In that case the judge found that the Frisbee agency had authority to issue the policy, that it had knowledge of the facts and circumstances, which knowledge was chargeable to the insurance company in so far as the Holcombs were concerned, and that there had been no concealment, misrepresentation or fraud perpetrated on the company by the Holcombs. The decree of the lower court denying cancellation was affirmed by this Court on appeal. Hawkeye Casualty Co. v. Holcomb, 302 Mich. 591. Thereupon the plaintiff herein paid Bradley the amount of the judgment and costs, and brought the instant suit to recover from Frisbee the sums so paid. For a moré complete narration of facts and circumstances, we refer to the opinion and record in the above case.
The oral agreement entered into between the Grand Bapids company and Frisbee during the latter part of March, 1938, was merged in _ the written general agency agreement dated April 9, 1938. This contract cannot rest partly in writing and partly in parol; the contract having been reduced to writing, as the previous parol, contract relating to the same matter was merged in the written contract. Savercool v. Farwell, 17 Mich. 308; M. Rumely & Co. v. Emmons, 85 Mich. 511; James Leffel & Co. v. Piatt, 126 Mich. 443; Wensel v. Kieruj, 168 Mich. 92; Danto v. Charles C. Robbins, Inc., 250 Mich. 419.
"Where an agent, authorized to issue policies, is charged with the duty of promptly reporting risks taken, but neglects to do so, and the insurer does not know of the risk until after liability has -been incurred on the policy, it is competent for the insurer to show that it would have canceled the policy if it bad been notified of the risk, and if such negligence of the agent is shown the insurer may recover his damages from the agent. State Ins. Co. v. Jamison, 79 Iowa, 245 (44 N. W. 371); Continental Ins. Co. v. Clark & Cressler, 126 Iowa, 274 (100 N. W. 524).
“Insurance agents, with respect to their duties and liability to their principal for failure properly to perform the same, stand in the same position as do ordinary agents toward their principals. * * * An insurance agent is liable for damages resulting to his principal from failure to disclose knowledge of material facts possessed by him relating to matters in his charge, and which it is important the principal should know in order properly to safeguard' its rights.” 3 Couch,. Cyclopedia of Insurance Law, pp. 1817, 1818.
Appellee argues that plaintiff cannot rely on a claim that the company had the right to cancel the policy inasmuch as it was not produced in court.' The question was not raised below. The Holcomb policy is in the printed record in this Court, in Hawkeye Casualty Co. v. Holcomb, supra. Admittedly there was only one such policy, which is the policy issued by Frisbee to Clayton E. Holcomb and Helen E. Holcomb, April 2, 1938. This Court will take judicial notice of its own records in the chancery case, supra', to supply the alleged defects in the • present record. Culver v. Fidelity & Deposit Co. of Maryland, 149 Mich. 630. However, it should be pointed out that in the instant case there is no question of fact but that the Holcomb policy referred to in the chancery case, supra, is the identical policy involved here. Nor is there any issue as to whether the insurer had the right of cancellation, under said policy. This clearly distinguishes the instant case from those decisions where the court questioned its right to take judicial notice of facts which were in issue, and which the plaintiff was required to establish by affirmative evidence. For example, see Carter v. Marvel Carburetor Co., 269 Mich. 21. The rule applying to the present situation is stated in 9 Wigmore on Evidence (3d Ed.), § 2579, as follows:
“However, for reasons of convenience, where controversy is unlikely and the expense of a copy •would be disproportionate, courts are often found taking notice of the tenor or effect of some part of a judicial proceeding, without requiring formal evidence. Since this dispensation is not obligatory on the part of the court, and since it must depend more or less on the practical notoriety and certainty of the fact under the circumstances of each case, little uniformity can be seen in the instances. It is often done for a part of the record in the same proceeding, or in a prior stage of the same controversy
The Holcomb policy contained the following provision:
“This policy may be canceled at any time by the company by giving to the assured five days ■written notice of such cancellation. ’ ’
Frisbee’s agency agreement in plain language required him to send the company immediately a daily report of all policies issued against it as insurer. If Frisbee had done so the company would have canceled the policy. According to undisputed testimony of the secretary of-the company, with the information the company had as to Dr. Holcomb’s accident frequency record and previous cancellations it would have immediately canceled the policy. The defendant in this case was an attorney, with many years’ experience in insurance agency matters, and admits having knowledge of the usual custom in the insurance business regarding cancellation of policies where the company has information of an accident frequency record.
The evidence clearly preponderates in favor of the plaintiff, that the defendant was guilty of a breach of his agency contract, that contrary to the express requirements of said contract he purposely or negligently concealed from the company the knowledge of circumstances which his duty as agent for 'the company under said contract required him to impart, that as a result the plaintiff was deprived of the right to cancel the Holcomb policy, and suffered a loss thereby. The amount of plaintiff’s damages is .not in dispute. The judgment for defendant is set aside and the case remanded for entry of judgment for the plaintiff for $5,471.72, the amount paid by plaintiff to discharge its liability for the Bradley judgment, plus interest at the rate of 5 per cent, per annum from September 28, 1942, the date of such payment, with costs of both courts to plaintiff.
Carr, C. J., and Butzel, Bushnell, Sharpe, Reid, North, and Dethmers, JJ., concurred. | [
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Btttzel, C. J.
Jesse E. Hatch and Alice L. Hatch, husband and wife, seek specific performance of a contract for the deed of a lot together with the house constructed thereon. They allege that defendant Sol Z. Wolack represented that he was the owner of a certain lot located in the city of Detroit, and that on September 13,1945, plaintiffs purchased the lot paying Wolack $1,000 for it; that contemporaneously with such purchase Wolack agreed in a separate contract to erect upon the lot a residence for the plaintiffs; that plaintiffs paid an additional $1,000 on the price of $7,750 to be paid Wolack for construction of the residence; that in the aforesaid building contract, plaintiffs agreed that Wolack would deed the lot that they had purchased on the payment of the $7,750, $1,000 on September 13,1945, $750 more when the roof was on the building, and the balance in the form of a $6,000 mortgage, plaintiffs to pay the mortgage expenses and any escrow fees. The two agreements attached together are set forth in the bill of complaint. Plaintiffs claim that Wolack represented that it would be necessary for them to obtain certain government priorities to build the house, and that plaintiffs obtained such priorities based upon the poor physical condition of plaintiff Alice L. Hatch; that they thereupon turned over the priorities to Wolack so that' he could pro ceed to construct the house. Plaintiffs further allege that they were notified by a letter from Wolack’s attorney that inasmuch as they had not paid the $750 when the roof was on the building, Wolack refused to be bound by the contract, and a certified check for $2,000 was enclosed, in the letter. ■ >
Plaintiffs state that they tendered Wolack the $750, that they still are willing not only to pay the $750, but the entire balance due under the contract, and that‘they tendered such full amount to Wolack, but he has refused to accept it. Plaintiffs allege that the reason for his refusal is that he can obtain a better price for the house and lot, and that he is using the excuse that plaintiffs did not pay the $750 instalment promptly as a subterfuge to deprive plaintiffs of the house which they urgently require.
Plaintiffs further show that defendant Dorothy Wolack was fully aware of her husband’s business and that he purchased property in their joint names; that Dorothy Wolack had full knowledge that it was her husband’s practice to contract to build houses on real estate owned jointly with his wife as though he were the sole owner and that she consented thereto and executed the necessary conveyances upon the completion of the houses; and that Sol Wolack’s representations to plaintiffs were made with the full knowledge and consent of Dorothy Wolack, thus making it possible for her husband to carry out a fraudulent scheme in the instant case.
Plaintiffs further state that the health of plaintiff Alice L. Hatch will be irreparably injured and impaired because they with their two small children are living in an upper flat and that going up and down stairs many times a day to attend the children is detrimental to her condition.
Defendant Dorothy Wolack individually filed a motion to dismiss on the ground that the agreements were not executed by her as one of the owners by the entireties. The circuit judge entered an order of dismissal on the ground that the alleged agreement was not signed by both of defendants, as required by 3 Comp. Laws 1929, § 13413 (Stat. Ann. § 26.908), and that the amended bill of complaint did not allege sufficient facts to constitute a cause of action.
Plaintiffs appeal. They show that in accordance with the terms of a separate contract the lot was paid for in full, and, therefore, the building contract Called for the erection of a house on a lot owned by plaintiffs although it was agreed that the deed would be withheld until the building was paid for. They place particular stress upon the fact that they turned over their government priorities to Wolack which, they contend, entitles them to specific performance. Although there is no direct charge of fraud, the implication is irresistible that Wolack and wife are using the lack of the latter’s signature to be relieved of a contract so as to realize a larger profit, thus pleading the statute of frauds for the purpose of perpetrating a fraud.
On motion to dismiss, we must accept all properly alleged material facts as true. Mahon v. Sahration, 310 Mich. 563. Defendants contend that part payment or other acts not involving a change of possession do not take the case out of the statute of frauds; that plaintiffs have failed to establish any contract to which Dorothy Wolack is a party, or that any agency in .writing exists whereby Dorothy Wolack constituted her husband her agent.
We have frequently held that part payment of the purchase price does not make an oral contract for the sale of land enforceable. First National Trust & Savings Bank v. Beckton, 258 Mich. 227; Thorbahn v. Walker’s Estate, 269 Mich. 586. Payment alone is ordinarily not sufficient to take a case out of the operation of the statute of frauds. More is required, such as taking possession and making improvements. Lamb v. Hinman, 46 Mich. 112, where the rule and the reason for it are set forth. In White v. Lenawee County Savings Bank, 299 Mich. 109 (136 A. L. R. 259), and Mahon v. Sahration, supra, it was held that certain payments did not constitute sufficient part performance to overcome' the requisite of the statute. However, in the instant case, plaintiffs did pay for the lot in full and the contract to erect the house, although contemporaneously made, was a separate agreement. The damages ' cannot he ascertained with certainty in the instant case. During a period when there existed a critical shortage of building materials, plaintiffs in reliance upon Mr. Wolack’s representation of ownership of the property went to the .difficulty of obtaining the necessary priorities based upon Mrs. Hatch’s ill.health. Without such priorities, the construction of the house could not have been undertaken. The obtaining of this permit was essential to the entire project. As stated in Lyle v. Munson, 213 Mich. 250, 260:
“Part performance while an essential in the test, does not in itself comprehend the whole doctrine of equitable relief in this class of cases. Misleading, fraudulent conduct by act or acquiescence is the underlying'thought which moves the chancery court under the principles of equitable estoppel to deny resort to the statute of frauds as an instrument of fraud.”
We believe the correct rule is stated in Henrikson v. Henrikson, 143 Wis. 314, 318 (127 N. W. 962, 964, 33 L. R. A. [N. S.] 534), wherein the court said:
“The general rule is that part performance by the purchaser under an oral agreement to convey is not sufficient to take the contract out of the statute of frauds, unless, possession is taken by such purchaser. * * *
“But it is also true that there is another class of cases resting upon the well-settled doctrine that where there is performance or part performance‘by the purchaser under and in pursuance of an oral contract to convey land, though no possession be taken by the purchaser, and the vendor, after performance by the vendee, refuses to convey, equity will enforce specific performance where the vendee has no adequate remedy at law, and the refusal to perform on the part of the vendor would work a fraud upon the vendee.”
If, as alleged in the bill of complaint,' Dorothy Wolack was aware of her husband’s business, knew of his practice of holding himself out to prospective purchasers as the sole owner of property actually owned by the entireties wdth herself, consented to this subterfuge and joined in the conveyances to the vendees, she would not be in position to plead the statute of frauds in a court of equity. In Henze v. Saunders, 215 Mich. 646, a husband and wife filed a bill to rescind a contract for the sale of a house owned by them by the entireties. It was urged that the plaintiff’s consent to the assignment of the vendee’s interest was obtained by fraud and that the consent to the transfer was void because it was signed by the husband alone. Mr. Justice Wiest, in writing for the Court, stated:
“It is contended that Mrs. Henze never having given her consent in writing, the assignment by Sirs. Beechie to Mr. Saunders is void. We feel that under the evidence relative to the management of the real estate by her husband, she is in no position to urge the necessity of her consent,”
We believe tbe case at bar is a stronger one and appeals more to tbe conscience of tbe court. In view of tbe facts hereinbefore set forth and tbe unusual’ circumstances of tbe case, plaintiffs are entitled to an opportunity to prove tbe allegations in their bill of complaint. If proven they justify tbe relief sought. Tbe bill should not have been dismissed on motion.
Tbe order to dismiss is hereby reversed, with costs to plaintiff, and the case remanded to tbe trial court for a bearing'.
Carr, Btxshnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Boyees, J.
These defendants pleaded guilty in the circuit court for Oakland county to an information charging them with conspiracy to operate and maintain a gambling business. Before sentence they filed a motion to set aside their pleas of guilty and for a trial. The motion was denied and sentences imposed. The only question for review is whether the court erred in denying the motion.
The circuit court obtained jurisdiction of the case May 19, 1944, at which time the justice’s return was filed, information filed, defendants were arraigned and stood mute, and pleas of not guilty were entered by the court. Thereafter, a motion to quash the information and to remand for further examination was filed as to appellants and other defendants, five of the other defendants were discharged, and ultimately the ease was called for trial January 9,1945. The then counsel for these appellants asked the court to continue the case until the next day to allow them to change their pleas, and on January 10th appellants pleaded guilty to the charge. The court thereupon continued their case to January 29th for reference to the .probation department and for sentence. On January 22d a consent to substitution of attorneys was filed and on January 23d the substituting counsel who now represents defendants on this appeal filed a motion to allow appel lants to withdraw their pleas of guilty for certain reasons alleged therein, and to grant appellants a trial. This motion was heard by the court January 26th, at which time the circuit judge announced that he would sign an order that the defendants might withdraw their pleas. However, before such an order had been signed, and on February 13th, the court again heard arguments on the motion and announced from the bench that the motion was denied. Thereupon the prosecuting attorney moved for sentence and the court forthwith imposed sentences ranging from $250 costs and 60 days in the county, jail with three years’ probation for Carter, to confinement in State prison for 1 to 5 years for defendants Sheppard and Burke. Appellants seek reversal of the order denying their motion for leave to withdraw their pleas of guilty.
It has been repeatedly held by this Court that a defendant in a criminal case may withdraw his plea of guilty at any time before sentence is imposed.
“We have no question that at any time before sentence the plea of guilty may be changed by the court to one of not guilty.” People v. Utter, 209 Mich. 214, 224.
“A considerate, procedure of long recognition in this jurisdiction admits of withdrawal of a plea of guilty at any' time before sentence.” People v. Piechowiak, 278. Mich. 550, 552.
“A plea of guilty may be withdrawn at any time before sentence.” People v. Wexner (syllabus), 280 Mich. 696.
“The first question has been ruled upon by this court on two occasions recently, and it is now the settled rule in this State that a plea of guilty may be withdrawn at any time before sentence.” People v. Stone, 293 Mich. 658, 661.
“We are committed to the doctrine that a defendant may withdraw his plea of guilty at any time before sentence has been imposed.” People v. Vasquez, 303 Mich. 340, 342.
The court was in error in denying the motion.
Appellants’ motion to set aside their pleas of guilty relied on the following reasons why it should be granted: That they were not in fact guilty of .any crime, that the information- was so indefinite that it did not inform them of what crime they were charged, that it sets up several offenses if any, that there was no evidence before the examining magistrate to show probable cause, and that the conviction was contrary to due process of law. There is nothing in the record to indicate that the motion was made in bad faith or solely for the purpose of delay. We do not here have a situation similar to People v. Furkas, 255 Mich. 533, where the Court found that under the peculiar circumstances of that case it would be a gross travesty of justice to permit the. defendant to withdraw his plea. In People v. Street, 288 Mich. 406, the Court said (p. 408) :
“No question is raised as to defendant’s right to withdraw his plea of guilty prior to trial and to substitute one of not guilty. People v. Pisoni, 233 Mich. 462; People v. Piechowiak, 278 Mich. 550; People v. Wexner, 280 Mich. 696. The entry of the latter plea must be held, consequently, to have eradicated the former plea which thereupon stood for naught. Kercheval v. United States, 274 U. S. 220 (47 Sup. Ct. 582, 71 L. Ed. 1009).”
The order denying defendants’ motion to withdraw their pleas of guilty is set. aside and the case remanded for entry of an order granting the motion. The case will stand for trial or further proceedings in the circuit court on the pleas of not guilty hereto fore entered by the court. Bail pending appeal will stand for appellants’ appearance in circuit court, otherwise defendants will be remanded to the custody of the sheriff of Oakland county.
Carr, C. J., and Butzel, Bushnell, Sharpe, Reid, and North, JJ., concurred. Dethmers, J., did not sit. | [
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Reid, J.
Plaintiff filed his petition for the purpose of procuring a writ of mandamus directing defendant board of canvassers not to count so-called “double straight” ballots in a recount proceeding, and also for writ of prohibition. This is not a suit to obtain a judicial determination of the title to the office of • prosecuting’ attorney for Wayne county. Plaintiff James N. McNally was the candidate of the Republican party for the office of prosecuting attorney for Wayne county, at the general election held November 5, 1946. According to the official election returns from the various, voting precincts of Wayne county, plaintiff received 303,679 votes for said office and Gerald K. O’Brien, candidate of the Democratic party for reelection to the same offieé, received 302,189 votes. A statement was made by defendant.board indicating such totals but defendant board did not issue a certificate of plaintiff’s election.
On November 23, 1946, Gerald K. O’Brien’s petition for recount of the ballots cast at the said election was filed with defendant board. Defendant began the recount on November 29, 1946.-
The official ballot in Wayne county for the November 5, 1946 election contained the names of Re publican and Democratic nominees for all offices to be filled for State, congressional, legislative and county offices; it also contained the names of Prohibition party nominees for all those offices except prosecuting attorney. The ballot also had on-it the names of candidates of the Socialist Labor party of America for all State offices to be filled and, also, for United States senator but none for the office of prosecuting attorney, or for any other county office. The' Communist party was represented on the ballot by nominees for three State offices, a nominee for United States senator and three nominees for member of the State legislature, but no other nominees appeared on said Communist ticket.
During the progress of recounting the ballots it appeared that a number of ballots were marked with a cross in the circle of more than one party ticket, with no other marks on the 'said ballots and no mark in the square in front of either candidate for prosecuting attorney, McNally or O’Brien. Such ballots are called “double straight” ballots. It appears that defendant board ruled that on a double straight ballot where one of the party tickets so marked with a cross in a circle had no candidate on it for prosecuting attorney, and the other party ticket also so marked with a cross in the circle had thereon the name of a candidate for prosecuting attorney, the ballot was valid and the defendant counted the same for the candidate whose name was in the column under one of the circles marked by the voter. Plaintiff claims that the net gain for contestant O’Brien by reason of counting such double straight ballots is about 400 votes.
Upon the. argument of the case it was shown that many ballots which apparently had been counted by the various local precinct election boards were rejected by the defendant on the recount for want of initials on the ballots and for other reasons, but the net result of such other rulings by defendant does not appear in the record. The question of the effect of want of initials on the ballots is not in issue in this proceeding. The defendant in its answer states, in effect, that the recount has now been completed and that of the votes, which the board ruled to be lawful, candidate Gerald K. O ’Brien has under the tabulation of said recount received 303,173 votes, and candidate James N McNally has received 303,151 votes. Defendant’s answer further states that these totals of figures on the recount includes and reflects the counting of double straight ballots in all precincts of Wayne county.
The attorney for O’Brien was permitted to participate in the argument of the matter on its submission herein.
Defendant questions the propriety of our taking jurisdiction of this case and suggests quo warranto as an adequate procedure to determine title to public office where there are disputed rulings on ballots such as are involved in this case. We are of the same- attitude toward mandamus proceedings in such cases as we expressed in Smith v. Board of Canvassers of Saginaw County, 220 Mich. 318, 321. Though the petition should have been presented to the circuit court for Wayne county, nevertheless we are willing to exercise jurisdiction in the instant case because we consider it of extreme urgency. The Constitution of this State, art. 7, § 4, clothes this Court with power to issue the writ of mandamus. '3 Comp. Laws 1929, § 13535 (Stat. Ann. § 27.29), makes further provision: concerning such power. A brief discussion of the jurisdiction of this Court in mandamus cases occurs in Chemical Bank & Trust Co. v. County of Oakland, 264 Mich. 673, 678-680. The jurisdiction of this Court to hear ane! determine mandamus eases brought against boards canvassing votes cast at public elections is too well settled to require detailed citation of cases.
Defendant counts on the decision in Cory v. MacKenzie, 297 Mich. 523. Defendant relies upon words contained in the following paragraph from the majority opinion, 531, 532:
“A striking-instance of giving effect to the intention of the voter is found in subsection (6) of the election law, above referred to (see p. 529 of the opinion), where it is provided that, when an elector votes a ticket by a cross in the circle under the party name affid also writes in or places upon the ticket the name of a candidate opposite the name of an office, the vote shall be counted for such candidate, although the name of the original candidate, as printed on the ballot, is not erased therefrom. The effect of this provision of our statute is similar in principle to those adjudications which hold that, where a ballot is marked with cross marks' in circles. at' the head of each of several tickets appearing thereon, it can be counted for no party, if all the tickets are complete, as such marks counteract each other; but that such ballots mnv be counted for the candidates on either of the tickets upon the other of which there are no opposing candidates. Caldwell v. McElvain, 184 Ill. 552 (56 N. E. 1012); People, ex rel. Feeny, v. Board of Canvassers of Richmond. County, 356 N Y. 36 (50 N. E. 425); 20 C. J. p. 160.''
The New York case cited in the Cory Case, supra, amounted to the carrying out and giving effect to the provision of the New York statute on which a voter in New York state had a right to rely when'he cast his double straight ballot.
It is readily noticeable that vdiat Justice McAlkister and those Justices who joined with him had in mind in the Cory Case was to illustrate from the Illinois and New York cases how far those states have gone in giving'effect to “the intention of the voter.” The syllabus of the Cory Case, p. 524, erroneously recites:
“The marking of a ballot with cross marks in circles at the head of each of several tickets appearing thereon can be counted for no party, if all the tickets are complete, as such marks counteract each other, but such ballot may be counted for'the candidates on either ticket upon the other of which there are no opposing candidates.”
What is said in an opinion by way of illustration only is of no binding authority as a decision. Folsom v. Teichner, 27 Mich. 107, 109.
The kind of ballot with which we are concerned in the instant case was hot before the court in the Cory Case. In the Cory Case this Court was concerned with eight ballots, on each of which the voter had pasted a slip with the name of a candidate on the slip different from that over which the slip was pasted, but no cross was made in the square in front of 'the name. The dispute was whether the eight ballots should be counted as votes for the person whose name was on the slips so pasted onto the ballots. ,
We do not overlook the citation of defendant in this case from City of Detroit v. Michigan Public Utilities Commission, 288 Mich. 267, 299, 300 (29 P. U. R. [N. S.] 203), where some words appear to the effect that all that is necessary for a decision to be authoritative is to show application of the judicial mind to the subject. Such words are to be considered as explained or modified by the quotations immediately following from Wisconsin and Maryland cases as to the matter being germane to the issue and the fullness of the discussion and actual submission by the parties. We have examined the record and briefs in the 'Cory Case and find that the validity of double straight ballots was not discussed nor made a part of the Cory Case in any manner, except as it is referred to in the opinion, and therefore the Cory Case is. not to be considered as determining that question. The Cory Case did not undertake to decide that double straight ballots should be counted. So far as open to that construction, such words in the opinion are in any event mere obiter dicta.
“A decision is, generally, not a precedent as to a point which was not sufficiently argued and presented to the court, although if the point was an essential one the fact that it was duly presented and considered may be presumed.” 21 C. J. S. p. 299.
In People v. Case, 220 Mich. 379, 382, 383 (27 A. L. R. 686), we say:
“It is a well-settled rule that any statements and comments in ah opinion concerning some rule of law or debated legal proposition not necessarily involved nor essential to determination of the case in hand are, however illuminating, but obiter dicta and lack the force of an adjudication.”
In speaking of the authority of judicial opinions as precedents, this Court has expressed itself in several cases, among which are Larzelere v. Starkweather, 38 Mich. 96; Wolcott v. Holcomb, 97 Mich. 361, 368 (23 L. R. A. 215); Micks v. Mason, 145 Mich. 212 (11 L. R. A. [N. S.] 653, 9 Ann. Cas. 291); People v. Barltz, 212 Mich. 580 (12 A. L. R. 520); Keasey v. Engles, 259 Mich. 178.
The Illinois case cited in the Cory decision, Caldwell v. McElvain, 184 Ill. 552 (56 N. E. 1012), contains the following as its complete statement on so-called double straight ballots, p. 558:
‘ ‘ There were a considerable number where voters had made a cross in the circle at the head of' more than one ticket. There were five tickets on the ballot: the Republican, Democratic, People’s, Prohibition, and Socialist Labor. The Republican and Democratic tickets were the only ones upon which there was a candidate for county judge. Where there were marks in the circle at the head of these two, the vote was for both, and neither was counted; but where there was a cross at the head of the Democratic or Republican ticket, and also at the head bf one or more of the other tickets, the ballot, was counted for the candidate for county judge on said Democratic or Republican ticket. There being no* candidate for that office on the other tickets, the cross did not indicate a vote for that office. The rulings on these questions were right.”
The Illinois court gave no explanation of the reason that led to such determination, which fact leaves us but little ground for considering the conclusion as a precedent for us to follow. , The same lack of expressly stated reasoning appears in Neff v. George, 364 Ill. 306 (4 N. E. [2d] 388). For that reason we disregard the Illinois decision in the Calckvell and Neff Gases.
Defendant cites Donlan v. Cooke, 212 Iowa, 771 (237 N. W. 496). In paragraph (6) on p. 775, that decision for its support refers to Spurrier v. McLennan, 115 Iowa, 461 (88 N. W. 1062). The sole portions of the Spurrier Case thus referred to that have anything of importance for our present consideration are contained in' subdivisions 3 and 5 of the opinion, which are as follows, 464, 466:
“3. Upon the ballot sheet appeared tickets of the Prohibition and Socialist Labor parties. Neither of these contained county tickets. Several of these tickets were marked in the circle, and a mark also placed in the square opposite the name of incumbent on the Republican ticket. These ballots were counted for the incumbent, and this action of the canvassing board was sustained by the district court. Section 1120 of the Code is in part as follows : ‘ (1) When a circle is marked, the ballot shall be counted for all the names upon the ticket beneath the circle. The making of a cross in the square of another ticket than the one marked in the circle shall not affect the validity of the ballot, except as to the office for which the person opposite whose name such mark was made is a candidate, and as to such office the vote shall not be counted. This section, we think, makes the cross in the circle effective as a vote for all names printed upon the ticket below it, but for nothing more. Such a cross cannot indicate a vote for an office that is left blank upon that ticket. If these tickets had contained the name of a nominee for the office of clerk of the district court, and the voters, after marking the circle, had put a cross in the square preceding the name of incumbent on the Republican ticket, they would have voted for two candidates for an office to which but one could be elected, and for such officer their votes could not be counted. But this reason does not apply in such a case as that now before us. The crosses in the circles were not votes for clerk of the district court, because the name of no candidate for that place appeared below them. The only votes for such officer were those indicated by the crosses in the square before incumbent’s name, and we think they were rightly counted for him. * *
“5. Á number of Republican tickets, upon which the name of incumbent was printed, were marked hi the circle with a cross, and a cross likewise put in the square before each name thereon except that of incumbent; the square before his name was left blank, and a cross placed in the square preceding-contestant’s name on the Democratic ticket. These ballots the district court refused to count for contestant. What is said in the third division of this opinion applies here. A cross in the circle conclusively means a vote for the whole ticket printed below it, and marking the square before a name on another ticket has no effect other than to nullify the vote for the officer thus 'doubly voted for. This rule is in no wise altered by the marking’ of the squares below the marked circle also. The statute providing for the effect to be given a cross in the circle makes no exception of such a case.”
The Iowa statute seems to be considerably different from the Michigan statute, in the matter of the effect of placing a cross in the circle and in the matter of placing a cross in the square before the name on another ticket. The Iowa case is therefore of little value for our decision in the instant case.
In the case of Moody v. Davis, 13 S. D. 86 (82 N. W. 410), the court say,
‘ ‘ There were cast 28 votes which were marked by a cross in the circle at the head of the Union Reform party ticket, and a cross in the circle at the head of the People’s party ticket. On the Union Reform party ticket were the names of three candidates for judges of the supreme court, and on the People’s party ticket there was only the name of the plaintiff, as candidate for county commissioner in and for the Fifth district. ’ ’
' We quote from p. 92 of the same opinion: •
“In enacting the Australian ballot system in this State, our legislature seems to have kept in view the distinction between the ticket voted by the elector, and the ballot which embraces all the tickets of the various parties; and this court, in adopting this view, has held that where the elector attempts to. vote more than one ticket, by marking a cross in the circle at the head of two tickets printed on the ballot, neither ticket can be counted. Vallier v. Brakke, 7 S. D. 343 (64 N. W. 180); McKittrick v. Pardee, 8 S. D. 39 (65 N. W. 23); McMahon v. Polk, 10 S. D. 296 (73 N. W. 77, 47 L. R. A. 830). In McKittrick v. Pardee, supra, some of the tickets were quite similar to those in the case at bar — one party having nominated and placed upon its ticket the State officers, and another party having placed upon its ticket the county officers only, — and the voter apparently attempted to vote both tickets, by placing a cross in the circle at the head of each of the two party tickets ; and this court held that neither' of those tickets could be counted, following the doctrine laid down in ValUer v. Bralike, supra. These facts do not appear in the opinion, probably for the reason that the court did not deem it material that one ticket embraced only the State officers, and the other ticket the county officers. Nor do we deem it material in the case at bar that one ticket embraces only candidates for judges of the supreme court and' the other ticket only the candidate for county commissioner. The tickets are separate and distinct,' and as the elector is only authorized to vote one ticket, and both tickets are marked by a cross in the circle at its head, neither can be counted.
“Counsel for the respondent contend that the learned circuit judge must have taken the view that the intention of the elector to vote for the judges and. also for the county commissioner was clear, but we know of no rule by which the court below or this court can say that such was the intention of the voter. The law declares that, if such was his intention, it should have been expressed by marking a cross in.the circle at the head of one ticket, and filling up that ticket by marking a cross in the circle at the left of the name of the candidate intended to be voted for on another party ticket, and so made to constitute a part of his ticket, and this is the only method by which the' courts can determine what the intention of the voter was. The method by which the voter may make up> his ticket in this State is so simple that we do not deem it necessary to fritter away the provisions of the statute in attempting to seek in some undefined method the intention of the elector. Judges of election and courts should not be required to spend their time in endeavoring to ■ ascertain what the intention of the elector was in depositing his ballot, except so far as he has expressed that intention in the matter and by the methods prescribed by the lawmaking power. As we said in the case of Vallier v. Brakhe, supra, any man of ordinary intelligence can learn in a very few minutes the method of marking his ballot, so that his intention can be clearly understood, and no person has a right to complain if he fails to take the time required to enable him to properly make up his ticket, and thereby loses his vote.”
The South Dakota statute is similar in several important respects to the Michigan statute. The reasoning of the South Dakota court seems to us to be sound, and in general, is considered as of assistance in arriving at a decision in the instant case.
In the Michigan statute, 1 Comp. Laws' 1929, § 3077 (Stat. Ann. § 6.365), there is a Command to place the following among the instructions at the top of the official ballot:
“To vote a straight party ticket make a cross (X) in the circle (0) under the name of your party. Nothing further need be done. To vote for a candidate not on your party ticket, make a cross (X) in the square □ before his name. * * * •
“If you do not desire to vote any party ticket, do not make a cross (X) in the circle (0) at the head of any ticket, but make a cross (X) in the square □ before the name of each candidate for whom you desire to vote.”
The Michigan voter who marked a double straight ballot must be conclusively presumed to have known that such marking was contrary to statutory provisions. The result was that each mark in a circle cancelled the mark in the other circle, and in law expressed an intention to vote no party ticket. It would follow that under the statutory instructions it was necessary for any voter not desiring to vote any party ticket to make a mark in the square in front of each candidate for whom he intended to vote. If he failed to do so, he failed to comply with the law and instructions given him, and therefore under the Michigan statute the ballot should be rejected entirely.
¥e should give effect to the expressed intention of the voter, but where the voter is indifferent to, and disobeys, the plain import of the statute’s instructions, it is not for the court to supply nor to construct an intention which the voter did not express. When the voter simply marked a cross in each of two party circles, his whole ballot meant-nothing without further marks upon it. The statute does not recognize the right of a voter to so mark the- ballot. Each of the two straight tickets can-celled the other.
When a voter places a cross at the head of two separate tickets, his intention as to which of the two he desired to vote would be a matter of pure conjecture. He may have inadvertently placed a cross in the wrong party circle and, neglecting to erase it, sought to carry out his actual intention by placing a cross in the circle at the head of another party ticket. In view of the above noted specific directions, which the statute requires to be printed at the head of the ballot, neither the election officials nor the courts may speculate (with no other indication on the ballot) as to the voter’s intent to vote for one or more of the candidates on one of the marked tickets merely because no opposing candidate 'was named on the other. So-called “double straight” ballots are invalid.
For the reasons heretofore recited, the double straight ballots hereinbefore described should not be counted for the office of prosecuting attorney for Wayne comity. Defendant board is directed to reject the donble straight ballots heretofore described and proceed further with their duties as- a board of canvassers. A writ will issue if found necessary. No costs are allowed, a matter of public interest being involved,
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Coleman, C.J.
Plaintiffs-appellants (hereinafter, plaintiffs), probationary schoolteachers, were employed by defendant during the 1975-1976 school year pursuant to a contract which provided, inter alia, for termination for economic reasons after ten days notice. On or about December 16, 1975, each plaintiff received written notice that his or her contract was being terminated for economic reasons and that the last day of employment would be January 23, 1976. Plaintiffs filed suit seeking to enjoin defendant from terminating their contracts. Plaintiffs claim that they had a statutory right to be employed for the duration of the 1975-1976 school year because they were not notified at least 60 days before the end of the preceding school year that their services were being discontinued as required by MCL 38.83; MSA 15.1983. MCL 38.83; MSA 15.1983 provides:
"At least 60 days before the close of each school year the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory. Failure to submit a written statement shall be considered as conclusive evidence that the teacher’s work is satisfactory. Any probationary teacher or teacher not on continuing contract shall be employed for the ensuing year unless notified in writing at least 60 days before the close of the school year that his services will be discontinued.”
Plaintiffs maintain that the board was thereby prohibited from terminating their contracts in midyear. Defendant filed a motion for summary judgment on the basis that the discharges were authorized by and made in accordance with the provisions of the parties’ contracts governing discharges for economic reasons. The trial court granted defendant’s motion for summary judgment and the Court of Appeals affirmed, see Boyce v Royal Oak Board of Education, 76 Mich App 526; 257 NW2d 153 (1977). Plaintiffs applied for leave to appeal and leave was granted, limited to the issue of: "[WJhether MCL 38.83; MSA 15.1983 applies to probationary teachers whose services are discontinued for economic reasons.” We hold that it does not apply to termination for economic reasons.
I
The parties’ contracts authorized the board to terminate the contracts for economic reasons upon ten days notice and established certain procedures which admittedly were followed in each case. These contractual provisions allowing termination for economic reasons distinguish this case from Bruinsma v Wyoming Public Schools, 38 Mich App 745; 197 NW2d 95 (1972); Smith v School Dist No 2 of Pleasant Plains, 69 Mich 589; 37 NW 567 (1888). Therefore, the dismissals were valid unless under MCL 38.172; MSA 15.2054 the contract provisions were void because they constituted a waiver of rights guaranteed by MCL 38.83; MSA 15.1983.
II
MCL 38.83; MSA 15.1983 is the only section of the teacher tenure act which governs the nonrenewal of probationary teachers’ contracts. It provides that if a probationary teacher is not notified at least 60 days before the end of the school year that his or her services will be discontinued, the teacher shall be employed for the ensuing year. Plaintiffs claim that because this procedure is the only one expressly mentioned in the act, it is the exclusive procedure by which a probationary teacher’s services can be terminated. Plaintiffs were not notified at least 60 days before the end of the last school year that their services were being discontinued and so they claim that they had a statutory right to be employed for the duration of the school year in question. It is of interest to note that only two of the plaintiffs were hired during that period.
The provisions of MCL 38.83; MSA 15.1983 were designed to provide the probationary teacher with notice of whether his or her services were satisfactory and whether his contract would be renewed. Notice of whether a teacher’s services were satisfactory could protect the teacher from arbitrary discharge and aid the teacher in evaluating and improving his services. This information may also help the teacher decide whether to continue on as a probationary teacher in the present position or to seek other employment opportunities. Another purpose behind the provisions of MCL 38.83; MSA 15.1983 is to provide the probationary teacher with notice as to employment status for the ensuing year. A teacher whose services are thus discon tinued is thereby afforded sufficient notice to seek other employment opportunities during the summer months when most of the hiring of teachers occurs.
Ill
The first purpose served by MCL 38.83; MSA 15.1983 — notifying probationary teachers of whether their services were satisfactory — cannot be said to apply directly to discharges caused by economic reasons, see Boyce, supra, 531, Steeby v Highland Park School Dist, 56 Mich App 395, 397; 224 NW2d 97 (1974). In our cases, there is no question as to the teachers’ competence. However, plaintiffs claim that the other purpose served by MCL 38.83; MSA 15.1983 — giving teachers employment security — does apply to discharges motivated by economic considerations. They argue that if a teacher foregoes the opportunity to seek other employment during the preceding summer months in reliance on MCL 38.83; MSA 15.1983, there should be a statutory right to employment through the next school year. Although we recognize that this argument cannot apply to the teachers not hired until the fall of 1975, it is relevant to the two teachers who were under contract 60 days before the end of the previous school year.
Contrary to plaintiffs’ interpretation of MCL 38.83; MSA 15.1983, the failure to notify a probationary teacher at least 60 days before the end of the school year that his or her services would be discontinued does not confer a statutory right to employment for the duration of the next school year which cannot be terminated for any reason. The teacher tenure act was intended to provide probationary teachers with some employment security in the sense of protection from arbitrary dismissal, but it was not intended to give them a statutory right to continuous employment throughout the school year regardless of any possible future developments. In Rehberg v Melvindale, Ecorse Twp School Dist No 11, 330 Mich 541, 545, 547-548; 48 NW2d 142 (1951), this Court stated:
"Its purpose is to maintain an adequate and competent teaching staff, free from political and personal arbitrary interference.
"It promotes good order and the welfare of the State and of the school system by preventing removal of capable and experienced teachers at the personal whims of changing office holders.
"The tenure act was enacted for the purpose of protecting teachers from being discharged or demoted from a continuing tenure except for 'reasonable and just cause’ * * *.
"The tenure act places an additional safeguard upon the arbitrary or unreasonable dismissal of teachers and is designed for their protection. It does not, however, otherwise diminish or interfere with the administrative power of the local controlling board, nor require it to indulge in idle ceremonies.” (Citations omitted.)
"It is against this background of the evils sought to be cured by statutory enactment that we proceed to an interpretation thereof’, Wilson v Flint Board of Education, 361 Mich 691; 106 NW2d 136 (1960).
MCL 38.83; MSA 15.1983 provides that if the teacher does not receive a 60-day notice that his or her services will be discontinued, the teacher "shall be employed for the ensuing year”. Plaintiffs argue that this section of the teacher tenure act should be interpreted literally to protect probationary teachers’ rights, see Shiffer v Board of Education of Gibraltar School Dist, 393 Mich 190; 224 NW2d 255 (1974).
However, the phrase "shall be employed for the ensuing year” is not an absolute guaranty of employment for the duration of that year. MCL 38.91; MSA 15.1991 also uses the phrase "shall be employed” in requiring that a board continuously employ tenured teachers, but it does not grant even a tenured teacher an absolute guaranty of employment. The employment security offered by the statute is protection from arbitrary and capricious dismissal. Even a tenured teacher can be dismissed based on a necessary reduction in personnel, MCL 38.105; MSA 15.2005. We cannot in good conscience say that the phrase "shall be employed” in MCL 38.83; MSA 15.1983 was intended to afford probationary teachers greater protection than tenured teachers possess under MCL 38.91 et seq.; MSA 15.1991 et seq. The failure to provide a probationary teacher with notice 60 days before the end of the school year that his or her services would be discontinued does not confer upon the teacher an absolute statutory right to employment for the duration of the next school year which cannot be terminated for any reason. Therefore, the contract provision authorizing termination of the contract for economic reasons does not waive any rights or privileges under the tenure act.
IV
It is argued by plaintiffs that this construction of MCL 38.83; MSA 15.1983 renders the rights of probationary teachers in Michigan patently inferior to those of such teachers in other states. This argument as a policy consideration inust fail. Some states have tenure acts which through a variety of means prohibit the midyear dismissals of probationary teachers for economic reasons. Other states’ statutes permit the dismissal, suspension or layoff of probationary teachers for lack of need of the teacher’s services or for economic reasons. Still other statutes do not directly address or resolve this issue.
MCL 38.83; MSA 15.1983 is the only statute using the language "shall be employed” with reference to the effect of failure to notify a probationary teacher that the teacher’s services would be discontinued. This provision must be construed in light of the purposes of the statute, see Wilson, supra. If teachers in Michigan wish to create a prohibition against discharge of probationary teachers for economic reasons, they must address themselves to the proper forum for resolving these concerns, either the Legislature or the forum of contract negotiations.
V
Furthermore, adoption of the construction of MCL 38.83; MSA 15.1983 urged by plaintiffs would lead to inequitable results. A probationary teacher could not be discharged, or only discharged with compensation, at any time until the end of the school year, even if that teacher’s continued employment threatened the lives and safety of the children at the school or would irreparably disrupt the efficient operation of the school. It would afford the probationary teacher a statutory right to employment for the duration of the school year even if the operation of the school were discontinued.
In short, the rights of probationary teachers would be greater than those of tenured teachers. We find that that was not the intention of the Legislature.
Accordingly, we hold that the notice provisions of MCL 38.83; MSA 15.1983 do not apply to discharges for economic reasons so as to prohibit a controlling board from reserving the right by contract to discharge a probationary teacher during the school year for economic reasons. Therefore, the contract provisions in this case were not invalid under MCL 38.172; MSA 15.2054.
Affirmed.
Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Coleman, C.J.
All were in the first year of probationary teaching except Dorothy Klegon who was in her second year. Linda Cerveny had taught since February 5, 1975, and had not reached her first anniversary when her 1975-1976 contract was terminated. However, her contract noted at the bottom: "Second Year Probation”. From the notices of termination, it appears that Judith Brusca and Linda Cerveny were given part-time positions. Tenured teachers, Korn, Savage and Adams, do not join in this appeal.
By an executive order of the Governor, issued in December, 1975, the school district was faced with a loss of $292,000 in state aid which had been budgeted for the 1975-1976 school year. In response, the board of education eliminated all capital outlays and expenditures for consumable goods, delayed the driver education program and omitted the spring sports program of the junior high school. The board was still faced with approximately a $142,000 deficit, so it decreased the staff in accordance with the master contract terms. Plaintiffs do not allege bad faith or question the reduction of revenues. The issue in this case is solely one of statutory construction.
See Boyce v Royal Oak Board of Education, 402 Mich 894 (1978).
The contract provided:
"This contract is subject to termination by either party upon written notice at least ten (10) days prior to the effective date of termination, except for termination caused by failure to perform under the terms of the contract which will require no notice of termination. The School District will not terminate this contract except for breach of the contract unless there is in the judgment of the Board of Education of the School District the [sic] insufficient revenue during the school year to continue the payment of the salary called for in this contract. In case of termination, salary will be paid for the period that services are performed on a pro rata basis based on the entire school year.”
"No teacher may waive any rights and privileges under this act in any contract or agreement made with a controlling board. In the event that any section or sections of a contract or agreement entered into between a teacher and a controlling board make continuance of employment of such teacher contingent upon certain conditions which may be interpreted as contrary to the reasonable and just causes for dismissals, provided by this act, such section or sections of a contract or agreement shall be invalid and of no effect in relation to determination of continuance of employment of such teacher.”
The holding in this case concerns the first sentence of MCL 38.172; MSA 15.2054. It holds that a probationary teacher does not waive any rights under the tenure act by entering into a contract with the controlling board whereby the board reserves the right to dismiss the teacher for economic reasons. The holding does not address the situation involving a contract which does not authorize the board to terminate the contract for economic reasons.
See, also, Amato v Oxford Area Community School Dist No 7, 402 Mich 521; 266 NW2d 445 (1978), Munro v Elk Rapids Schools, 383 Mich 661, 691; 178 NW2d 450 (1970), rev’d (On Rehearing), 385 Mich 618; 189 NW2d 224 (1971), Wilson v Flint Board of Education, 361 Mich 691; 106 NW2d 136 (1960), Freiberg v Board of Education of Big Bay De Noc School Dist, 61 Mich App 404; 232 NW2d 718 (1975), Blurton v Bloomfield Hills Board of Education, 60 Mich App 741; 231 NW2d 535 (1975), Bruinsma v Wyoming Public Schools, 38 Mich App 745; 197 NW2d 95 (1972).
In Wilson v Flint Board of Education, supra, this Court stated that one of the purposes behind the teacher tenure act was to reduce the large turnover in the teaching profession. The Court quoted from a study in Comment, Constitutional Law — Schools and School Districts —Teachers’ Tenure Legislation, 37 Mich L Rev 430, 431-432 (1939), which stated that:
"The large turnover in the profession was due in part to certain practices which were widespread throughout the country; among them may be noted discharge (1) because of political reasons, (2) because of nonresidence in the community, (3) in order to make places for friends and relatives of board members or influential citizens, (4) in order to break down resistance to reactionary school policies, and (5) in order to effect economies either by diminishing the number of teachers and increasing the amount of work assigned to those retained, or by creating vacancies to be filled by lower salaried, inexperienced employees. Of these practices the first was exceedingly influential in the growth of the tenure movement, some of the more notorious cases of political dismissal challenging the attention of the public to the injury to professional morale and efficiency resulting from the misuse of the control vested in the administrative agencies. The remedy for such abuses was sought in legislation designed to strip the school boards of their autocratic power and to prescribe for them rules of administrative action which would ensure a greater degree of security to their employees.”
See, also, Munro v Elk Rapids Schools, supra, Freiberg v Board of Education of Big Bay De Noc School Dist, supra. The study recognizes that teachers, as are all employees, are justifiably concerned about the relative security of their employment positions and with whether their positions might be reduced or eliminated for economic reasons. However, the study goes on to state,
"If conditions warrant it, the board has the undoubted authority to discontinue certain types of instruction; * * *. Every tenure statute contains the qualification that its provisions are not to apply in case there is. such a diminution in the number of pupils as to necessitate the dismissal of a teacher.” 37 Mich L Rev 434.
See Lipka v Brown City Community Schools, 399 Mich 704; 252 NW2d 770 (1977), rev’d (On Rehearing), 403 Mich 554; 271 NW2d 771 (1978); Weckerly v Mona Shores Board of Education, 388 Mich 731; 202 NW2d 777 (1972); Goodwin v Board of Education of the School Dist of Kalamazoo, 82 Mich App 559; 267 NW2d 142 (1978).
See Munro, supra, 383 Mich 692, fn 5; see, also, MCL 380.1806; MSA 15.41806.
MCL 38.105; MSA 15.2005 provides:
"Any teacher on permanent tenure whose services are terminated because of a necessary reduction in personnel shall be appointed to the first vacancy in the school district for which he is certified and qualified.” (Emphasis added.)
Implicit in this section is the authority to terminate for personnel reduction, see Steeby v Highland Park School Dist, 56 Mich App 395; 224 NW2d 97 (1974), Bruinsma v Wyoming Public Schools, 38 Mich App 745; 197 NW2d 95 (1972).
See Munro, supra; Freiberg, supra.
Although MCL 38.83; MSA 15.1983 does not contain any language referring to demotions and discharges as does MCL 38.91; MSA 15.1991, this does not mean that probationary teachers cannot ever be dismissed or demoted. The language in MCL 38.91; MSA 15.1991 is a limitation on the board’s common-law authority to dismiss rather than an aifirmative grant of authority which the board would not otherwise have.
See Ala Code, tit 52, § 358, Ariz Rev Stat § 15-257, Colo Rev Stat § 22-63-102(3), Ga Code Ann § 32-2101c(a)(6), Hawaii Rev Stat § 297-11, Burns Ind Stat Ann (1978 Cum Supp), § 20-6.1-4-10.5(a)(5), Minn Stat Ann §125.17(4X5), Mo Ann Stat §168.221(5), Nev Rev Stat § 391.312(g), NJ Stat Ann § 18A28-9, NC Gen Stat § 115-142(e)(l)(l), Or Rev Stat § 342.835, Pa Stat Ann, tit 24, § 11-1124, RI Gen Laws § 16-13-6, Tenn Code Ann § 49-1410, Utah Code Ann (1977 Cum Supp) § 53-51-8, W Va Code § 18A-2-2, Wis Stat Ann § 118.23(4).
In East Detroit Federation of Teachers, AFT Local 698 v East Detroit Board of Education, 55 Mich App 451, 453; 223 NW2d 9 (1974), the Court of Appeals stated in dictum that they were holding that MCL 38.83; MSA 15.1983 applied to dismissals for economic reasons. To the extent that this language is inconsistent with this Court’s holding, we specifically overrule it. | [
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Coleman, C.J.
Defendant and a codefendant, Lewis Griffin, were charged with two counts of first-degree murder (premeditated and felony murder), MCL 750.316; MSA 28.548, resulting from the fatal shooting of Edgar Coleman, Jr. At their trial, defendant made a motion for a directed verdict of acquittal at the conclusion of the people’s case. The motion was denied after the judge said that the prosecution had presented evidence on each element of the offense. The motion was renewed at the close of all the proofs and the trial judge reserved his ruling on this motion until after the jury returned a verdict. After the jury found defendant guilty of second-degree murder on both counts, MCL 750.317; MSA 28.549, the judge ordered that the verdict be set aside and ordered a new trial. The prosecutor sought leave to appeal in the Court of Appeals but leave was denied. The prosecutor applied for leave to appeal in this Court which was granted and limited to the issue of: "Whether, under the circumstances of this case, the trial court invaded the province of the jury when he granted the defendant’s motion for directed verdict after the jury had returned a verdict finding the defendant guilty.”
I
On appeal, the prosecutor claims that the trial judge erred in directing a verdict of acquittal. He claims that the judge erred by employing an improper standard in ruling on the motion, by failing to view the evidence presented by the prosecution, and all reasonable inferences therefrom, in a light most favorable to the prosecution, by considering evidence presented by the defendant and by allowing an inaccurate view of the possible punishment to affect his decision. The prosecutor argues that the standard to be applied in determining whether a motion for a directed verdict should be granted is whether there is any evidence on each material element of the offense and that questions of the sufficiency of the evidence are for the jury unless there is no evidence at all upon a material point, see People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), People v Johnson, 397 Mich 686; 246 NW2d 836 (1976), People v Abernathy, 253 Mich 583; 235 NW 261 (1931), People v Eaton, 59 Mich 559; 26 NW 702 (1886), People v Miller, 78 Mich App 336; 259 NW2d 877 (1977), People v Maliskey, 77 Mich App 444; 258 NW2d 512 (1977). Defendant contends that the proper standard for ruling on a motion for a directed verdict is whether the evidence is sufficient to justify a reasonable person in concluding that defendant is guilty beyond a reasonable doubt, see People v Edgar, 75 Mich App 467; 255 NW2d 648 (1977), People v Royal, 62 Mich App 756; 233 NW2d 860 (1975).
Recognizing that the reported opinions of the appellate courts of this state contain different and sometimes conflicting statements of the standards for directed verdicts, we granted leave to appeal in this case to resolve and settle the significant jurisprudential issue of what is the proper standard to be applied in passing on motions for directed verdicts in criminal cases. However, the resolution of this issue is now controlled by the rationale underlying the decision in Jackson v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979).
Jackson held that a Federal habeas corpus court, in determining whether a state conviction was based on sufficient evidence, must consider not whether there was any evidence to support the conviction but whether there was sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt.
In explaining the constitutional considerations underlying the decision in Jackson the Court stated:
"In short, [In re] Winship [397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970)] presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.
"[T]he Federal Courts of Appeals have generally assumed that so long as the reasonable-doubt instruction has been given at trial, the no-evidence doctrine of Thompson v Louisville [362 US 199; 80 S Ct 624; 4 L Ed 2d 654 (1960)] remains the appropriate guide for a federal habeas corpus court to apply in assessing a state prisoner’s challenge to his conviction as founded upon insufficient evidence. We cannot agree.
"The Winship doctrine requires more than simply a trial ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. A 'reasonable doubt,’ at a minimum, is one based upon 'reason.’ Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as jury. In a federal trial, such an occurrence has traditionally been deemed to require reversal of the conviction. Under Winship, which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand.” (Citations omitted.) Jackson, supra, pp 316-318.
In rejecting the any evidence test, the Court focused on the differences between the concepts of relevancy and sufficiency of the evidence. Under MRE 402, all relevant evidence is admissible unless otherwise excluded. Relevant evidence is defined as evidence having any tendency to make the existence of any fact that is of consequence more probable or less probable than it would be without the evidence, MRE 401. The test of relevancy is designed to determine whether a single piece of evidence is of such significant import that it warrants being considered in a case. The standards for admissibility are designed to permit the introduction of all relevant evidence, not otherwise excluded, on the theory that it is best to have as much useful information as possible in making these types of decisions, Turnbull v Richardson, 69 Mich 400, 416; 37 NW 499 (1888).
The concept of sufficiency, on the other hand, is designed to determine whether all the evidence, considered as a whole, justifies submitting the case to the trier of fact or requires a judgment as a matter of law. This is in contrast to the standards for relevancy which usually focus on one particular piece of evidence. The fact that some evidence is introduced does not necessarily mean that the evidence is sufficient to raise a jury issue. Because there is no requirement that the evidence be sufficient to support a conviction to be admissible, it does not necessarily follow that merely because some evidence is admitted, the evidence is sufficient to raise a jury issue. In quantitative terms, the fact that a piece of evidence has some tendency to make the existence of a fact more probable, or less probable, does not necessarily mean that the evidence would justify a reasonable juror in reasonably concluding the existence of that fact beyond a reasonable doubt.
Due process requires that the prosecutor introduce sufficient evidence which could justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt before a defendant can be convicted of a criminal offense, see, Jackson, supra. If sufficient evidence is not introduced, a directed verdict or judgment of acquittal should be entered. The statements in Johnson, supra; Abernathy, supra; Eaton, supra, to the effect that a trial judge should direct a verdict only where there is no evidence on a material element of the offense are specifically disapproved.
In summary, the trial judge when ruling on a motion for a directed verdict of acquittal must consider the evidence presented by the prosecution up to the time the motion is made, Garcia, supra, view that evidence in a light most favorable to the prosecution, People v Vail, 393 Mich 460, 463; 227 NW2d 535 (1975), and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt, Jackson, supra, p 319.
II
However, the standards governing directed verdicts do not require that the jury’s verdict of guilty be reinstated. From the facts as they have evolved, we find that the trial judge did not direct a verdict of acquittal. He set aside the jury’s verdict and ordered a new trial. Although this ruling was made following arguments on defendant’s motion for a directed verdict, the judge actually ordered a new trial and did not direct a verdict. The trial judge’s order provided:
"Defendant having moved for a directed verdict at the close of the prosecution’s proofs, and that motion having been denied, the court ruling that the prosecution had presented some evidence on all the elements of the offense; and that motion having been renewed at the close of all proofs, and decision reserved by the court until after return of the verdict, and the jury having returned verdicts of guilty of second-degree murder against defendant; this court hereby finds that the evidence presented was not sufficient to convince a reasonable person beyond a reasonable doubt of defendant’s guilt, consequently:
"It is ordered that the jury verdicts as to Defendant Hampton [handwritten by Judge Crockett] be set aside, defendant’s renewed motion for--a- directed vordiet — is granted, and a new trial is ordered.” (Cancellations made by hand in original.)
The statements in the two paragraphs of the order are ambiguous and even confusing in light of the judge’s oral explanatory statements. We do not interpret the order as representing a conclusion by the trial judge that a verdict of acquittal was required as a matter of law, even under the Jackson standards. The testimony, arguments of counsel and statements by the trial judge preceding the rulings on these issues clearly indicate that when ruling on these motions, the trial judge did not consider the prosecution’s evidence in its best light, considered evidence offered by the defense and may have permitted an inaccurate view of the possible punishment to affect his decision. Because the trial judge weighed the evidence presented by both the prosecutor and defendant, we conclude that his findings and order are more consistent with the ordering of a new trial than with the direction of a verdict of acquittal.
The standards governing the grant or denial of a motion for a new trial are different from those for a directed verdict. MCL 770.1; MSA 28.1098, provides:
"The court in which the trial of any indictment shall be had may grant a new trial to the defendant, for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct.”
Under this statute, a new trial may be granted if the trial judge finds that the guilty verdict was not in accordance with the evidence introduced and that an injustice has been done. People v Henssler, 48 Mich 49, 51; 11 NW 804 (1882), People v Rayford Johnson, 391 Mich 834; 218 NW2d 378 (1974). See, also, GCR 1963, 527.1(5). The decision whether to grant or deny a motion for a new trial is entrusted to the discretion of the trial court and that decision will not be disturbed on appeal without a showing of an abuse of discretion, People v Andrews, 360 Mich 572; 104 NW2d 199 (1960), People v Lowenstein, 309 Mich 94; 14 NW2d 794 (1944).
Even the defendant, who argued that this Court should adopt a directed verdict standard similar to the one required by Jackson, concludes that the trial judge’s findings and order were consistent with the standards governing the ordering of new trials. In his brief, it is argued that:
"Here, the record shows that the trial judge in passing upon defendant-appellee’s motion gave full pay [sic, play?], to the right of the jury to determine credibility, draw inferences of fact, and determine whether a reasonable mind might fairly conclude guilt beyond a reasonable doubt. The trial judge determined upon the evidence that a reasonable mind might have a reasonable doubt as to the guilt of the defendant-appellee and so set the verdict aside and ordered a new trial. In doing so he was not required to apply the standards required had he acquitted the defendant-appellee.
"Wherefore, appellee respectfully requests that the order of the trial judge vacating the defendant’s conviction be upheld and a new trial ordered.”
For these reasons and because defendant has not appealed or requested a review of this order, we would decline to reverse the order for a new trial and to order that a directed verdict of acquittal be entered.
A review of the record in this case does not show that the trial judge abused his discretion in granting a new trial or that his actions impermissibly invaded the province of the jury.
Affirmed.
Fitzgerald, J., concurred with Coleman, C.J.
See People v Hampton, 402 Mich 828 (1977).
In ruling on defendant’s motion the trial judge stated that he did not think the evidence came "through with as much clarity as I think the law requires if you are going to send a man away under a mandatory sentence of life imprisonment”. However, the jury had returned a verdict of guilty of murder in the second degree which does not carry a mandatory life sentence, see MCL 750.317; MSA 28.549.
At oral arguments, the prosecutor claimed that Burks v United States, 437 US 1; 98 S Ct 2141; 57 L Ed 2d 1 (1978), held that it was a violation of double jeopardy to order a new trial after setting aside a jury’s verdict of guilty as being against the great weight of the evidence. Traditionally, the granting of a new trial on this basis with the defendant’s consent was not viewed as violating double jeopardy, see People v Fochtman, 226 Mich 53; 197 NW 166 (1924), 21 Am Jur 2d, Criminal Law, § 209, p 253. The holding in Burks, supra, does not directly apply to or resolve this issue because it concerned the ordering of a new trial after a directed verdict of acquittal. In fact, the question of whether the ordering of a new trial on the basis that the verdict was against the great weight of the evidence violates double jeopardy was specifically left unresolved in Greene v Massey, 437 US 19, 26, fn 10; 98 S Ct 2151; 57 L Ed 2d 15 (1978), decided the same day as Burks, supra.
During the arguments on the motion made at the close of all the proofs, the following discussion occurred:
"The Court: The only basis on which you can get a conviction against the defendant Hampton is on the theory that he aided and abetted in the commission of this homicide. And as I recall the proofs, I’m inclined to think that you are dependent almost entirely on that evidence as to whether he was the one who pressed the release in the Buick that opened the trunk. I think everything else that you claim he did lends itself to the conclusion that it was not done voluntarily, that it was done under' maybe two or three different species of compulsion. One, for his own protection dealing with a person considerably his senior, a former Marine, who had regaled him time and time again about his exploits, and who during all of this period of time is with Mr. Hampton’s knowledge armed with a sawed-off shotgun. And secondly, for the safety of his sister, who seemed to be dumb enough to cultivate that kind of friendship and posed the danger for her younger brother. And third, his own immaturity.
“Now I am wondering if that sort of summary of the evidence with respect to him isn’t enough to warrant the conclusion that no reasonable person could conclude beyond a reasonable doubt that he is guilty.
"[Prosecutor]: I would think that’s not the case, your Honor. There are a chain of events here which would lead or should be able to lead a jury to reasonably find that he is guilty. The only element of compulsion that was ever testified to was that the defendant Mr. Griffin somehow touched his gun at the time when he first picked up the car and told the defendant Mr. Hampton to get in.
"The Court: Well, you don’t mean the only element of compulsion. You might mean the only overt threatening act.
"[Prosecutor]: Yes.
"The Court: All right. That’s different from an element of compulsion.
"[Prosecutor]: The only overt threatening act was that. After that time there was ample opportunity for Mr. Hampton to disassociate himself with the chain of events that led to Mr. Coleman’s death. He in fact was present during the time when Mr. Coleman was being bound and gagged. There is some evidence, at least the way I look at the evidence, to indicate that Mr. Griffin could not have bound and gagged and retained possession of the shotgun in the home.
"There is an opportunity of Mr. — that Mr. Hampton had to reveal his predicament at the time when he got out of the car, went to the gas station, obtained some gas. There was another opportunity for him to disassociate himself with the chain of events when he returned the gas can. He didn’t make any of those efforts.
"The Court: Now during all of this time he is operating under circumstances where his sister is in the presence of his codefendant, who has a sawed-off shotgun.
"[Prosecutor]: But there is no evidence whatsoever, your Honor, that Mr. Griffin’s presence with the sister was threatening at all to the sister. There was no threats made to the sister. She apparently went along with this thing voluntarily. She didn’t testify that Mr. Griffin made her do anything at all.
"The Court: Wasn’t there some testimony to the effect that Mr. Hampton initially was reluctant or refused to get in the car when they were leaving the house and his sister, according to his testimony, indicated to him that he had better comply? Don’t you remember that testimony?
"[Prosecutor]: Once again, your Honor, that’s Mr. Hampton’s testimony. It’s not — it’s not — it’s not his sister’s testimony at all. There was ample opportunity for defense to bring that out. It never came out. There is no evidence whatsoever that his sister felt — felt threatened or that anyone felt threatened at any time except for that one instance when, if you believe Mr. Hampton, Mr. Griffin made a threatening gesture when he first obtained the car. That is the only evidence that any threats or any type of duress was used at all towards Mr. Hampton.”
After the verdict was returned, defendant requested a ruling on his motion and the following discussion took place:
"[Prosecutor]: Secondly, I think that we have a jury to decide these matters. I don’t believe that we can review their findings. I think that there was sufficient evidence that—
"The Court: What do you mean — you said you don’t think we can review their findings?
"[Prosecutor]: I think that — I think—
"The Court: Don’t you always do that on a motion to set aside the jury’s verdict and grant a new trial?
"The Court: The whole theory of the prosecution, as I indicated before, in prosecuting Hampton was that he voluntarily aided and abetted in this killing and also in the robbery. I indicated earlier when the motion was made at the close of all of the proofs for a directed verdict, that in my judgment the only act, assuming that the evidence established that act, on which the prosecution could rely to show aiding and abetting, was the contention that Mr. Hampton was the one who pressed the release that caused the back trunk to open to permit Mr. Griffin to take out the body.
"Mr. Hampton denied that he did that. The prosecution’s star witness, Mr. Griffin’s sister, who was sitting right on the front seat, denied that he did it, and testified that Mr. Griffin himself was — I didn’t mean to say Mr. Griffin’s sister; Mr. Hampton’s sister. And she testified that Mr. Griffin himself was the one that came back into the front of the car, pressed the release to open the trunk.
"The prosecution relies on the testimony of Mr. Griffin’s sister. But her testimony, as I recall it, is pretty clear to the effect that she not only was overly excited, she was frightened, she was down on the floor of the car behind the seat. And her only basis for concluding that Mr. Hampton was the one who pressed the release was that she believes he leaned over the back seat.”
A prior inconsistent statement in which Ms. Griffin stated that Mr. Hampton pressed the release button that opened the trunk was introduced to impeach her testimony that she did not see Mr. Hampton press the button.
"Now whether he leaned over the back seat to press the release or whether he leaned over the back seat for any other reason or whether in fact he leaned over the back seat, does not come through with as much clarity as I think the law requires if you are going to send a man away under a mandatory sentence of life imprisonment.
"I am not satisfied that justice was done in this case. I am not satisfied that the jury followed the court’s instructions. I am not satisfied that the prosecution’s evidence was sufficient to convince a reasonable person beyond a reasonable doubt that Mr. Hampton is guilty. The jury’s verdict is set aside. A new trial is ordered in the case of Mr. Hampton.”
"There is no incongruity or inconsistency in requiring the Court to submit the issues to the jury if there is substantial evidence to support a verdict of guilty, and at the same time in empowering it to set the verdict aside if it is deemed contrary to the weight of evidence. In directing a judgment of acquittal, the Court makes a final disposition of the case. On the other hand, in setting the verdict aside the Court merely grants a new trial and submits the issues for determination by another jury. It is appropriate that in the latter instance, the Court should have wide discretion in the interest of justice.” (Footnote omitted.) United States v Robinson, 71 F Supp 9, 11 (D DC, 1947). | [
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Ryan, J.
Retired Circuit Judges Sam Street Hughes and Marvin J. Salmon filed suit in the Court of Appeals, as an original proceeding under GCR 1963, 714, praying for a writ of mandamus to compel the defendant to increase their pension benefits under the Judges’ Retirement Act in accordance with the 1974 amendment to the act. Judge Hughes became a member of the Judges’ Retirement System on April 19, 1957, the first day of his employment as an Ingham Circuit Judge. He retired from that office on January 1, 1973 and since that time has received an annuity as a beneficiary of the Judges’ Retirement System.
Judge Salmon became a member of the retirement system on January 1, 1952. He retired from his judgeship on January 1, 1974 and likewise has been receiving retirement benefits ever since.
The amount of the retirement annuity being paid the plaintiff judges is computed according to the provisions of § 14 of the Judges’ Retirement Act. At the time Judges Hughes and Salmon retired, § 14 as applied to them provided that their pension benefits were to be an amount equal to one-half the salary "being currently paid” by the state to circuit judges.
In 1974, § 14 of the Judges’ Retirement Act was again amended to provide, in part, as follows:
"Upon a member’s retirement as provided in section 13 or section 16, he shall be paid a straight life annuity terminating upon his death equal to 50% of the annual Salary paid by the state to him at the time of retirement for the first 12 years of service credited to his account. In addition thereto for each year or fraction of a year of service credited to his account, up to 4 additional years, his straight life annuity, terminating upon death, shall be increased 2 1/2% of his annual salary paid by the state. Not more than 16 years of service may be used to determine the amount of annuity to be paid.”
The 2-1/2% annuity increase for each year of service in excess of 12 years and up to 16 years has been applied by the Judges’ Retirement Board exclusively to judges who have retired after the effective date of the amendment, December 18, 1974. Thus, plaintiffs have received none of those benefits.
On November 23, 1976, plaintiffs’ attorney sent a letter to the Executive Secretary of the Judges’ Retirement System demanding that his clients be accorded increased annuity payments in conformity with 1974 PA 337, § 14, even though plaintiffs had retired prior to its effective date, December 18, 1974. The specific relief requested was as follows:
"D The payment of the additional 9-1/2% annuity to Judge Sam Street Hughes from December 18, 1974 to date, plus the legally allowed interest on that overdue sum, taking into consideration whatever options he has previously selected.
"2) The payment of the additional 10% annuity payment for Judge Marvin Salmon from December 18, 1974 to date, plus the legally allowed interest on that overdue sum, taking into consideration whatever options he has previously selected.
"3) Commencing as of this date, Judge Hughes’ annuity payments should be increased to 59-1/2% of the current salary of a circuit court judge, taking into consideration whatever options he has previously selected.
"4) Commencing as of this date, Judge Salmon’s annuity payment should be increased to 60% of the current salary of a circuit court judge, taking into consideration whatever options he has previously selected.”
In effect, plaintiffs sought to combine the 10% increased benefit maximum of 1974 PA 337, § 14, with the 50% escalator clause of 1956 PA 224, § 14, so that their annuity payments from December 18, 1974 into the future would always equal 60% of the then current salary paid by the state to circuit judges.
In a reply letter, the Executive Secretary denied the requested relief, relying upon an earlier opinion of the Attorney General which held that § 14 as amended by 1974 PA 337 "contains no language which either expressly or by implication indicates that it is intended to operate retrospectively” to allow payment of benefits provided thereunder to judges retired prior to the amendment.
Complaint for mandamus was then filed by plaintiffs in the Court of Appeals which, by order dated December 21, 1977, denied all relief sought.
This Court granted leave to appeal, limited to the following questions: (1) whether plaintiffs are seeking retrospective application of 1974 PA 337, § 14, as amended by 1976 PA 134; and (2) whether the nonapplication of the cited public acts to judges who retired prior to December 18, 1974, violates equal protection of the laws.
I. Retrospectivity
A
Recognizing that as a general rule this Court has not countenanced retrospective application of statutory enactments absent legislative direction to do so, plaintiffs argue that 1974 PA 337 need not be applied retrospectively in order to confer its benefit upon judges who retired prior to December 18, 1974, its effective date. Their argument is that they seek payment of the increased benefits authorized by the amendment prospectively only, from the effective date of the legislation, and not retrospectively from the dates of their retirements. The plaintiffs concede that if the new benefits were awarded from the date of their retirement, which for both of them was prior to December 18, 1974, the amendment would have to be applied retrospectively.
Plaintiffs concede that there is no expression of legislative intent that the increased benefits of amended § 14 are payable to any judges for any period prior to the enactment of the amendment.
Despite that concession, the first stated issue warrants brief development.
A retrospective law is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. Barber v Barber, 327 Mich 5; 41 NW2d 463 (1950). A statute is construed to have prospective effect only unless the Legislature expressly, or impliedly, indicates its intention to give it retrospective effect. McQueen v Great Markwestern Packing Co, 402 Mich 321; 262 NW2d 820 (1978). An example of an attempt to apply an act retrospectively in the context of the Judges’ Retirement Act confronted this Court in Campbell v Judges’ Retirement Board, 378 Mich 169; 143 NW2d 755 (1966).
In 1961, with the passage of 1961 PA 169, the Legislature eliminated the escalator clause it had adopted in 1956 which was the basis for computing retirants’ annuities. In Campbell the defendant Judges’ Retirement Board argued that the repeal of the escalator clause was applicable not only to judges retiring after its effective date, but to those who retired prior thereto as well. This Court held that application of the 1961 repeal of the escalator clause to judges who retired under the benefits of the clause would give retrospective effect to the repealer. The Court refused to apply the repealer in that fashion, reasoning that once a judge agreed to enter the retirement system and pay contributions, a contract was formed and his right to receive certain retirement benefits became vested when he chose to retire. Thereafter, his rights under the contract could not be diminished or impaired by legislative amendment, although the Legislature could choose to add benefits by subsequent amendment. Campbell, supra, at 181.
We agree that Judges Hughes and Salmon do not seek retrospective application of 1974 PA 337 as statutory retrospectivity is generally understood, because rather than impair or diminish their vested rights to retirement benefits, the computation formula of the 1974 amendment would have the immediate beneficial effect of increasing their pensions. This reality does not alter the rule, however, that whether beneficial or detrimental, in the absence of legislative intent to the contrary, a statute may not be applied retrospectively.
A statute is not regarded as operating retrospectively because it relates to an antecedent event. Merely because some of the requisites for its application are drawn from a time antedating its passage does not constitute a law retrospective. Clear-water Twp v Board of Supervisors of Kalkaska County, 187 Mich 516; 153 NW 824 (1915). Certainly the Judges’ Retirement Act does not require that eligibility for a pension should depend upon circumstances occurring subsequent to enactment of the law. A retirant’s period of judicial service prior to passage of the act is permitted to be taken into consideration in determining eligibility for its benefits.
It is unthinkable that only those judges who served 12 or more years after the effective date of the 1974 amendment would be entitled to the benefits provided thereunder. Thus, to apply the amendment to persons who presently possess a continuing status, even though a part or all of the requirements to constitute it were fulfilled prior to the passage of the amendment, does no violence to the rule prohibiting retrospective application of a statute. See People ex rel Albright v Board of Trustees of the Firemen’s Pension Fund of the City & County of Denver, 103 Colo 1, 11; 82 P2d 765 (1938).
We are satisfied that by requesting benefits not from the date of retirement but from the effective date of the amendment in question, plaintiffs seek only prospective application of the amendment. We are likewise satisfied that providing benefits under the amendment to judges who fulfilled their service requirements prior to the effective date of the amendment does not offend the rule against retrospectivity.
The conclusion that 1974 PA 337 need not be applied retrospectively in order to afford plaintiffs relief from the effective date of amendment is not the end of the obstacles confronting plaintiffs.
B
Implicit in any conclusion that the retrospectivity issue does not preclude plaintiffs’ entitlement to benefits under the amendment is the assumption that they are otherwise eligible to receive the benefits in question.
The totality of requisites under the act which constitute a person eligible for benefits is known in pension law parlance as "pensionable status”.
In order to be entitled to pension benefits from the effective date of the 1974 amendment to § 14, plaintiffs must, as a condition precedent, have had the requisite pensionable status under the amendment at the time of its passage.
The language of the Judges’ Retirement Act setting forth the requisites for a pensionable status is clear and unambiguous. To discern its meaning we need not resort to highly technical rules of statutory construction, or substitute our own opinion as to what we may regard as fair for the Legislature’s plain language and stated purpose. See Jones v Grand Ledge Public Schools, 349 Mich 1; 84 NW2d 327 (1957); Nordman v Calhoun, 332 Mich 460; 51 NW2d 906 (1952).
The pertinent part of 1974 PA 337, § 14 under which plaintiffs seek relief is set forth, supra, and provides that the newly created benefits are payable "[u]pon a member’s retirement”.
There are two essential requirements for attaining pensionable status under the amendment. A judge must: (1) be a member of the Judges’ Retirement System, and (2) have more than 12 years of service credited to his account. Since both plaintiffs had well over 12 years of service credited to their accounts, it is the element of membership in the retirement system which is critical to their attainment of pensionable status under the amendment. To determine whether plaintiffs are "members” of the retirement system we look first to the act itself. Section 2(c) states:
" 'Member’ means a judge who, subject to this act, agrees to become a member of the retirement system.”
It is uncontroverted that Judges Hughes and Salmon became members of the retirement system in 1957 and 1952, respectively. However, § 12 of the act provides:
"A judge’s membership in the retirement system shall terminate (1) whenever he becomes a beneficiary; * * * >>
Section 2(i) of the act defines a beneficiary as follows:
" 'Beneficiary’ means a person in receipt of the annuity or other benefit provided by this act.”
Plaintiffs do not dispute that they are presently beneficiaries of the retirement system receiving annuities "provided by this act”. By legislative definition then, they are no longer "members” of the retirement system.
This Court, too, has held that under the terms of the act retired judges are no longer members of the retirement system. In Campbell v Judges’ Retirement System, supra, at pp 180-181, the Court stated:
"In this case plaintiffs, who had been judges and contributing members of the judges’ retirement system, elected to and did retire under the governing act. Under that act and particularly Section 12 thereof, they, thereupon, ceased to be members of the system. When they so retired and ceased to be members of the system, their contract was completely executed and their rights thereunder became vested.”
There are two distinct categories of persons affected by the act: First, those judges who agree to become members of the retirement system and in pursuance thereof voluntarily continue to contribute to the pension system as members, and second, those judges whose rights to benefits under the system have vested and who no longer contribute to the system as members, but instead receive annuity payments as beneficiaries. A judge is either a contributing member or a retirant-beneficiary. He cannot be both at once.
The express legislative mandate that "[u]pon a member’s retirement * * * [the member] shall be paid a straight life annuity * * and that a judge’s membership terminates "whenever he becomes a beneficiary”, means that only those judges who were members of the retirement system on the effective date of 1974 PA 337, § 14, may claim its benefits.
It follows then that as retirant-beneficiaries, plaintiffs are not members of the retirement system and were not on the effective date of the 1974 amendment to § 14. They do not have the requisite pensionable status to entitle them to its benefits.
Consequently, we conclude that in adopting 1974 PA 337, § 14, and thereby increasing judicial retirement benefits, the Legislature did not confer the newly increased benefits upon persons who were already beneficiaries under the Judges’ Retirement System.
Our interpretation of the language of the statute as limiting eligibility for the benefits of amended § 14 to those judges who were members of the retirement system at the time of the adoption of the amendment is fortified by the fact that in the past, when the Legislature wished to confer newly enacted retirement benefits upon retirant-beneficiaries, it did so explicitly. For example, when enacting the escalator provisions of § 14 of 1956 PA 224, the Legislature provided:
"The retirement annuity herein required to be paid shall also be paid to those members already on retirement in a sum equal to that which they would receive if they retired after the effective date of this amendatory act.” (Emphasis added.)
That language was subsequently deleted by 1961 PA 169 and similar language has not been revived since.
In view of its own prior course of conduct in dealing with this same retirement act, and its awareness of this Court’s language in Campbell, the Legislature is presumed to have been mindful of the question whether the 1974 amendment should apply to pensioners already in retirement.
Consequently, in light of the history of the act, its unmistakable definitional language and the absence of express legislative direction that the benefits of the 1974 amendment are to be applied to persons already on the pension rolls, we are bound to conclude that they are not to be so applied.
Plaintiffs’ reliance upon People ex rel Albright v Firemen’s Pension Fund, supra, for the contrary result is not convincing. Important to the decision in that case, as it is in the instant case, was the determination whether the plaintiffs had a pensionable status at the effectivé date of the act’s amendment. The words of the amendment defining the pensionable status under the Colorado statute provided that "[i]f any member * * * shall die * * * while on the retired list, leaving a surviving widow” (emphasis added) such widow was entitled to increased benefits under the amendment. That language of the Colorado statute obviously differs significantly from our own, since under the former the term "member” expressly included those persons who had already retired. Within such statutory framework, it naturally followed that the Colorado Supreme Court would conclude that the widows of retired firemen, who died prior to the effective date of the amendment, had the requisite pensionable status entitling them to increased benefits.
States with pension statutes similar to our own have also concluded that, by virtue of the statutory language employed, retired employees do not have a pensionable status entitling them to prospective benefits under an amendatory provision. See Snuggs v Arkansas State Employees Retirement System, 241 Ark 402; 407 SW2d 933 (1966); Cross v Graham, 224 Ark 277; 272 SW2d 682 (1954); Board of Trustees of the Police Pension & Retirement System of Oklahoma City v Burns, 348 P2d 1067 (Okla, 1959).
C
We find meritless plaintiffs’ alternative argument that when 1974 PA 337, § 14, became effective it repealed the statute it replaced, and therefore the beneficiaries who retired prior to the effective date must receive the benefits under the 1974 amendment or be left with no benefits at all.
This argument, while novel, fails for proving too much, particularly considering the fact that plaintiffs presently receive annuity benefits under the escalator clause of 1956 PA 224, § 14, which was expressly repealed in 1961.
Plaintiffs’ right to receive benefits under the escalator clause became vested upon their retirement and cannot be extinguished or diminished by any subsequent legislative act. Campbell v Judges’ Retirement System, supra.
II. Equal Protection
The second issue upon which this Court granted leave was to consider whether plaintiffs are being denied equal protection of the laws under the Michigan and United States Constitutions by reason of the nonapplication of 1974 PA 337, § 14, to judges who retired prior to the amendment’s effective date.
We hold that the Court of Appeals correctly relied upon this Court’s decision in Burgess v Detroit, 359 Mich 269; 102 NW2d 483 (1960), to dispose of the plaintiffs’ equal protection challenge. In Burgess, supra, at 280, this Court stated:
"The remaining question is whether such exclusion makes the amendment unconstitutional. All widows of policemen and firemen whose husbands were members of the new policemen and firemen retirement system at date of death or retirement are in one class and subject to the new provisions for benefits. All widows prior to the amendment are in another class. This Court has many times held that legislation is not unconstitutional because it is legislation of a particular kind or character, or because it benefits a particular class, so long as the law operates equally upon those within the particular class. In re Phillips, 305 Mich 636 [9 NW2d 872 (1945)]; Lake Shore Coach Lines, Inc v Secretary of State, 327 Mich 146 [41 NW2d 503 (1950)]; People’s Appliance, Inc v City of Flint, 358 Mich 34 [99 NW2d 522 (1959)]. This amendment includes all within the respective classes; consequently, it is not arbitrary or unreasonable. The legislative body in its wisdom determines who shall receive benefits. In this instance it chose to exclude plaintiffs. This Court cannot and will not question its reasons unless they appear to be palpably arbitrary or unreasonable. Ver Hoven Woodward Chevrolet, Inc v Dunkirk, 351 Mich 190 [88 NW2d 408 (1958)]; Metropolitan Funeral System Ass’n v Commissioner of Insurance, 331 Mich 185 [49 NW2d 131 (1951)].”
We need add little to the above analysis. As demonstrated in Part I, above, the Legislature did not intend to provide increased benefits to judges who retired prior to the effective date of 1974 PA 337, § 14. In view of the legislative purpose of the Judges’ Retirement Act, this Court cannot say that the distinction created between judges who retire prior to the amendment and those who retire after the amendment is arbitrary, unreasonable, or devoid of rational basis. The purpose of the act as expressed at the date of the 1974 amendment was as follows:
"An act to provide for a judges’ retirement system for the purpose of inducing competent and qualified attorneys to become judges and to remain in the service of the people of the state as judges; to provide for the retirement of judges due to age or disability; to provide for the payment of annuities; to create a judges’ retirement board and prescribe its powers and duties; to establish certain funds in connection therewith; to provide for contributions thereto by judges and by the state; and to provide penalties for failure to comply with the provisions of this act.” (Emphasis added.) 1951 PA 198, § 1.
It was the Legislature’s purpose that the increase in judicial retirement benefits provided by the annuity computation formula of 1974 PA 337, § 14, serve as an inducement to competent and qualified attorneys to become judges, or to remain judges if already in office. The amendment could not act as an incentive to become or remain an active judge to someone who had already retired from a judgeship.
Subsequent amendment has deleted reference to any express legislative purpose. 1978 PA 351, § 1. However, we are not convinced that is indicative of the fact that the legislative intent was necessarily changed.
The classification the plaintiffs question is rationally related to the object of the legislation in which it is made. Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978), cert den 442 US 934 (1979).
The Court of Appeals is affirmed.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred with Ryan, J.
1951 PA 198; MCL 38.801 et seq.; MSA 27.125(1) et seq.
The plaintiffs are among a relatively small and historically exclusive group of retired jurists whose pensions are based not upon the salary paid them at the time of their retirement, but upon the sum currently being paid judges of the court from which they retired.
As originally adopted in 1951, the Judges’ Retirement Act provided for payment of an annuity in the fixed sum of $4500. 1951 PA 198, § 14. A 1952 amendment increased the sum to $7500 for retired Supreme Court Justices only. In 1956 the Legislature again amended § 14, this time providing, inter alia, that retired circuit judges receive an annuity equal to one-half the salary "being currently paid” sitting circuit judges. Thus was enacted the so-called "escalator clause” which tied the pensions of retired judges to the steadily increasing salary of active judges. In 1961 the Legislature repealed the escalator clause and provided that judicial pensions would be one-half the annual salary paid by the state to a judge at the time of his retirem 6nt
In Campbell v Judges’ Retirement Board, 378 Mich 169; 143 NW2d 755 (1966), this Court held that judges who were members of the retirement system during the escalator clause era of 1956 to 1961 acquired a vested contractual right to an annuity computed upon the escalator clause language of 1956 PA 224, whenever they retired.
The plaintiffs are in that category. Judge Hughes joined the retire ment system in 1957 and Judge Salmon in 1952. Thus their pensions have increased each time the state portion of the salary of sitting circuit judges has been increased. Judge Hughes’ pension has gone from $12,600 per year at his retirement to $15,425 per year now and Judge Salmon’s from $13,078.50 at his retirement to $15,425 now.
Judges who became members of the judges’ retirement system after 1961 are not entitled to the escalator clause, and receive an annuity based upon their salary at the time of retirement.
Section 14 was again amended in 1976 and 1978, but the textual changes relevant to our present inquiry effected by these amendments were merely stylistic. For purposes of convenience, future reference to the 1974 amendment to § 14 should be read to include the 1976 and 1978 amendments. 1976 PA 134, 1978 PA 351.
OAG, 1975-1976, No. 5008, p 620 (September 29, 1976).
In Snuggs, an amendatory provision to the public employee retirement system provided increased benefits to "[a]ny member who retires”. Snuggs, a retired court reporter, was denied the right to participate in any such increase because, under another section of the Arkansas act similar to our own, it was provided that "[u]pon a member’s retirement or death he shall thereupon cease to be a member of the System”. It was thus evident to the Arkansas court that Snuggs did not have a pensionable status on the effective date of the amendment.
In Cross and Burns, the courts read special significance into the Legislature’s use of the word "shall” in enacting amendments to retirement acts. While it is not necessary for this Court to engage in such fine semantic evaluations of the legislative intent, we find instructive the decisions of those courts which have characterized the Legislature’s use of the word "shall” as connoting a "forward-looking * * * operation” and "envisage the attachment of certain rights to a pensionable status to be achieved in the future”.
See, also, Minty v Board of State Auditors, 336 Mich 370; 58 NW2d 106 (1953).
Const 1963, art 1, § 2; US Const, Am XIV. | [
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Per Curiam.
On August 30, 1979, this Court issued the following order in this matter:
"On order of the Court, the motion for immediate consideration is considered, and it is granted.
"The application for leave to appeal is considered and, in lieu of leave to appeal, we reverse and vacate the trial court order of July 13, 1979, revoking defendant’s pretrial release bond, and we hereby order the original bond reinstated. The trial court erred by revoking defendant’s bond. The recent amendment of Const 1963, art 1, § 15 does not alter GCR 1963, 790. That court rule continues to be controlling in pretrial release matters, and pursuant to GCR 1963, 790.1 the defendant in this case is entitled to bail.
"Coleman, C.J., not participating.”
The people have filed a motion regarding this order which is entitled a "Motion for Explanation and/or Clarification, and/or Motion for Reconsideration”. We have decided to grant the motion.
I
The defendant, while on probation for a prior conviction of third-degree criminal sexual conduct, was charged with new criminal offenses, namely first- and second-degree criminal sexual conduct. On December 10, 1978, the defendant was arraigned in district court on the new charges. Pretrial release bond was set at $2,000/10%. The defendant posted it and was released.
The defendant was free during the subsequent legal proceedings which included binding over to circuit court for trial on the new charges.
However, on July 12, 1979, a hearing was conducted in the Oakland Circuit Court on the people’s motion to revoke the defendant’s bond. The thrust of the people’s motion was that the new amendment to Const 1963, art 1, § 15, effective after the date of the defendant’s release on bond, warranted revocation of the bond. In particular, the people argued that the defendant’s bond should be revoked because of the following provision contained in the constitutional amendment:
"All persons shall, before conviction, be bailable by sufficient sureties, except that bail may be denied the following persons when the proof is evident or the presumption great:
"(d) A person who is indicted for, or arraigned on a warrant charging, a violent felony which is alleged to have been committed while the person who was on bail, pending the disposition of a prior violent felony charge or while the person was on probation or parole as a result of a prior conviction for a violent felony.” Const 1963, art 1, § 15(d).
The circuit judge agreed with the people that the defendant came within the ambit of the constitutional amendment. The circuit judge also rejected the argument of the defendant that the provisions of the amendment, effective after the defendant had been released on bond, should not be applied retroactively in an effort to revoke that bond.
The defendant unsuccessfully sought leave to appeal to the Court of Appeals.
Upon application for leave to appeal to this Court, we issued the aforementioned order.
II
Upon further reflection we have concluded that the last two sentences of our prior order should be vacated. We are considering and will publish for comment a proposed amendment to GCR 1963, 790 to bring the court rule into conformity with the constitutional amendment. GCR 1963, 790 as presently constituted, was based upon Const 1963, art 1, § 15 as it existed before the recent amendment.
However, the argument originally advanced by the defendant in his application for leave to appeal must now be addressed. The defendant has steadfastly maintained that applying the constitutional amendment to him was to apply it retroactively in violation of art I, § 10 of the Constitution of the United States.
The people’s response to this argument is that issues pertaining to bond are governed by the law existing at the time of the "bond hearing”. Therefore, according to the people, since the constitutional amendment was in effect at the time of the bond revocation hearing, the provisions of that amendment which set forth criteria under which bail may be denied to an individual were appropriately applied here.
We conclude that to apply the new criteria of the constitutional amendment concerning release on bond to this defendant would be fundamentally unfair. The defendant was already free on bond at the time the amendment became effective. It was not even alleged that the defendant’s situation had changed at all. Only the criteria for release on bond had changed.
At the time the defendant was released on bond he had a constitutional right to be admitted to bail provided the conditions for admission to bail were met. The defendant met those conditions and was admitted to bail. The new criteria for admission to bail, set forth in the constitutional amendment, should not have been applied in these proceedings, which were proceedings to determine whether the admission to bail should be revoked, since there was no allegation that the defendant’s situation had changed at all.
As a general rule, constitutional amendments operate prospectively and not retroactively. This is particularly so where the constitutional amendment would affect a substantive right. See 16 CJS, Constitutional Law, § 40, pp 121-122, and Toole v State Board of Dentistry, 300 Mich 180; 1 NW2d 502 (1942); City of Lansing v Michigan Power Co, 183 Mich 400; 150 NW 250 (1914).
Accordingly, we reaffirm that portion of our order of August 30, 1979, which ordered that the defendant’s original bond be reinstated. However, we vacate that portion of our previous order which discussed the interrelationship between the amendment of Const 1963, art 1, § 15 and GCR 1963, 790.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Ryan, J.
(to affirm). Leave to appeal was granted in this case to address several challenges to the constitutionality of the "guilty but mentally ill” verdict established by 1975 PA 180. We agree with the Court of Appeals that on the record in this case there is no showing of a clear and inevitable conflict between this new verdict and either the United States or Michigan Constitution. We affirm the judgment of the Court of Appeals.
I. The Statute
1975 PA 180 established a new verdict heretofore unknown to the jurisprudence of our state— guilty but mentally ill.
The statute provides, in pertinent part, that
"(1) If the defendant asserts a defense of insanity in compliance with section 20a, the defendant may be found 'guilty but mentally ill’ if, after trial, the trier of fact finds all of the following beyond a reasonable doubt:
"(a) That the defendant is guilty of an offense.
"(b) That the defendant was mentally ill at the time of the commission of that offense.
"(c) That the defendant was not legally insane at the time of the commission of that offense.” MCL 768.36(1); MSA 28.1059(1).
Section 20a, MCL 768.20a; MSA 28.1043(1), establishes certain procedures and rules that are applicable when a defendant in a felony case proposes to offer a defense of insanity.
Mental illness, as used in this statute,
"[M]eans a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” MCL 330.1400a; MSA 14.800(400a).
Once a defendant is found guilty but mentally ill, MCL 768.36(3); MSA 28.1059(3) authorizes the court to impose any sentence which could lawfully be imposed upon any defendant who is found guilty of the same offense. The statute provides that upon commitment to the custody of the Department of Corrections, the defendant shall undergo further evaluation and be given such treatment for his mental illness or retardation as is psychiatrically indicated. Treatment is to be provided by the Department of Corrections or by the Department of Mental Health after transfer to that agency, pursuant to certain statutory procedures.
MCL 768.36(4); MSA 28.1059(4) establishes certain conditions and procedures for placing a defendant who is found guilty but mentally ill on probation.
The instant challenge to this statute concerns the sentencing provisions of MCL 768.36, subdivisions (3) and (4); MSA 28.1059, subdivisions (3) and (4).
II. Facts
The defendant, Joseph McLeod, was charged with arson, a felony, in violation of MCL 750.72; MSA 28.267. He waived a jury trial and asserted a defense of insanity. At the conclusion of his bench trial on May 17, 1976, he was found guilty of arson but mentally ill. The trial court made the three specific findings required under MCL 768.36(1); MSA 28.1059(1).
Thereafter the trial Court, on its own motion, conducted three hearings to obtain the testimony of certain psychiatrists in an attempt to determine the type of treatment that might be provided to the defendant under the new statute’s sentencing alternatives. The court called the assistant director of the Office of Health Care for the Michigan Department of Corrections, the director of the Forensic Department, Northville State Hospital, Michigan Department of Mental Health, and an associate professor of psychiatry at Wayne State University.
After hearing the testimony of these three psychiatrists, obtaining some figures on the rate of transfer of mentally ill patients from the Department of Corrections to the Department of Mental Health, and receiving a post-conviction report concerning the defendant’s present mental health from the Recorder’s Court Psychiatric Clinic, the trial court filed a written opinion on September 21, 1976.
In its opinion the court found that defendant was presently and chronically mentally ill and required continued care, but held that the treatment mandated by MCL 768.36(3); MSA 28.1059(3) would not be provided if defendant was committed to the Department of Corrections. The court found that the conditions within the Department of Cor rections, as described by the psychiatrist from that department, posed an immediate threat of irreparable harm to defendant.
The court also found that probation, conditioned on continued in-patient treatment by the Department of Mental Health, was not "a viable [sentencing] alternative because the state will not provide such care”. In that connection, the court concluded from testimony by a representative of the Department of Mental Health that the department’s policies would require the defendant’s release "as soon as the administration of strong anti-psychotic drugs masked the overtly gross symptoms” of his mental illness.
The court found further that the statutory provisions for probationary sentences for persons found guilty but mentally ill, MCL 768.36(4); MSA 28.1059(4), violated state and Federal guarantees of equal protection of the laws by mandating a minimum five-year term of probation for such persons without regard to the existence or extent of their mental illness or the. time needed for treatment, while other persons convicted of the same probationable crimes face no such minimum term of probation.
The court held that MCL 768.36(3); MSA 28.1059(3) "is legally inert and cannot be given judicial implementation for the reason that compliance with its provisions as to treatment is impossible and the court is thereby deprived of its authority to enter a judgment of guilty but mentally ill or to sentence [defendant] thereunder”. The court, sua sponte, set aside the verdict of guilty but mentally ill, declared it a nullity and granted defendant a new trial, despite the fact that none was requested.
The Court of Appeals granted the prosecutor’s emergency petition for leave to appeal, reversed the order of the trial court granting a new trial and remanded the case for sentencing. 77 Mich App 327; 258 NW2d 214 (1977). The Court of Appeals held that the reasons asserted by the trial court to support the finding of unconstitutionality were premature because they all involved speculation that neither the Department of Corrections nor the Department of Mental Health would heed the mandate of the statute. Consequently, the Court of Appeals found no clear and inevitable conflict between the statute and the Constitution on the record presented at that time and remanded the case to the trial court for imposition of sentence.
Following this decision, the trial court sentenced defendant to five years probation with psychiatric treatment to be provided by the Department of Mental Health as a condition of probation. The trial court’s written order specifically acknowledged defense counsel’s objection to the five-year term of probation. The court stated that it was of the opinion that neither defendant’s nor society’s needs would be well served by the five-year term of probation and that it would have sentenced defendant to a shorter period of probation but for the mandate of the statute. MCL 768.36(4); MSA 28.1059(4).
Subsequently, this Court granted defendant’s delayed application for leave to appeal on the following issues:
“(1) Whether the failure of the Court of Appeals to consider the trial court’s factual finding of immediate and irreparable injury to the defendant impairs the ruling of the Court of Appeals that the trial court’s action was premature;
"(2) Whether under the circumstances of this case the sentencing court was an appropriate forum for determining that the sentencing provisions of MCL 768.36; MSA 28.1059 cannot be implemented;
"(3) Whether MCL 768.36; MSA 28.1059 violates due process of law because the act itself gives the defendant an undeniable right to such treatment as is psychiatrically indicated for his mental illness, when it is shown factually that defendant will not be afforded such psychiatric treatment;
“(4) Whether the actual operation of MCL 768.36; MSA 28.1059 violates the Eighth Amendment’s ban against cruel and unusual punishment;
"(5) Whether subsection (4) of MCL 768.36; MSA 28.1059 which provides a period of probation for those found guilty but mentally ill shall be not less than five years, violates equal protection and due process clauses of the constitutions?” 402 Mich 927-928 (1978).
III. The Availability op Treatment
The first four issues on which leave was granted are considered together because they are each related to the trial court’s determination that the treatment mandated by MCL 768.36; MSA 28.1059 would not be provided to defendant.
After careful consideration of the proceedings below, as well as the able argument and enlightening brief of defense counsel, we find ourselves in agreement with the Court of Appeals
"that matters relating to post-sentence treatment, or lack of treatment, are prematurely raised. The reasons asserted by the trial judge for her finding of unconstitutionality are premature in that they all relate to speculation that the Department of Corrections or the Department of Mental Health will not pay heed to the statute. While future events may prove the trial judge was correct in her surmise, to conclude that compliance with the statute is 'impossible’ is inaccurate.” 77 Mich App 327, 330; 258 NW2d 214 (1977).
We find, at the outset, that this new statute grants defendant, and other persons who are sentenced pursuant to this new verdict, an unequivocal statutory right to
"such treatment as is psychiatrically indicated for his mental illness or retardation.” MCL 768.36(3); MSA 28.1059(3),
upon commitment to the custody of the Department of Corrections, or the right to
"[treatment [which] shall be provided by an agency of the Department of Mental Health, or with the approval of the sentencing court and at individual expense, by private agencies, private physicians, or other mental health personnel.” MCL 768.36(4); MSA 28.1059(4),
if defendant is placed on probation with treatment as a condition of the probation.
While we recognize that the statute grants a right to such treatment as is psychiatrically indicated, we hold that on this record the sentencing court erred in attempting to determine whether that treatment would in fact be provided. In attempting to do so, the sentencing court failed to afford the departments statutorily charged with the responsibility for providing that treatment a reasonable opportunity to comply with the statutory mandate. Indeed, in exercising its sentencing function, the trial court did not even have before it the parties statutorily charged with the responsibility for administering the statute’s mandates. While a knowledgeable representative from each of the departments charged with certain duties under the statute cooperated with the court in its inquiry into the availability of the mandated treatment, that was not enough. In order for the sentencing court to have properly made the findings it purported to make concerning the actual availability and provision of treatment for defendant, it must first have had the responsible departments before it as parties to a legal proceeding, represented by counsel, and afforded a full and fair opportunity to develop a factual record to determine at least the following:
1) Whether treatment was psychiatrically indicated for defendant;
2) If so, the type and length of the treatment that was psychiatrically indicated;
3) Whether that treatment was being provided or would be provided; and
4) If not, the reasons for the failure to provide such treatment.
The sentencing proceedings below did not afford these departments an opportunity to develop such a record.
The extraordinary procedure followed by the sentencing court in People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974), is inapplicable to this situation. In McQuillan, this Court found that a sentencing court properly assumed jurisdiction pursuant to a "Delayed Motion to Vacate Commitment Order” to review the constitutionality of the automatic commitment statute by which that court had committed defendant to the Department of Mental Health. In a footnote response to the dissenting opinion in McQuillan, the majority characterized the procedure followed by that sentencing court as a proper exercise of its jurisdiction to review whether it had authority to commit a person to an institution in the first instance. The Court specifically said this was an altogether different thing from the sentencing judge reviewing whether rules or practices of the correctional authorities denied a person’s constitutional rights after a proper commitment, which its opinion would not justify. 392 Mich 523, fn 2.5.
The procedure followed by the sentencing judge in the instant case was an attempt to conduct a review of the rules and practices of the correctional authorities prior to commitment. Commitment was properly authorized under the statute. An attempt to determine before commitment was effected that the rules and practices of the correctional authorities would violate defendant’s constitutional rights after commitment was premature. McQuillan is not authority for the trial court’s actions in this case.
Moreover, until such time as Mr. McLeod "undergoes] further evaluation” in the custody of the Department of Corrections, as provided by the statute in question, no determination can be made of what "treatment [in the judgment of that agency] is psychiatrically indicated for his mental illness or retardation”. Thus, it is logically impossible to conclude that the required care will not be provided.
We are constrained to observe that even if a proper determination could have been made by the trial court that Mr. McLeod would not receive the required treatment, it does not follow that the statute is, for that reason, unconstitutional.
Department of Corrections noncompliance with the statutory mandate for evaluation and treatment cannot render an otherwise constitutional statute unconstitutional.
Therefore, we hold that on the record before us the sentencing court was an inappropriate forum to determine that the sentencing provisions of MCL 768.36; MSA 28.1059 could not and would not be implemented. We find that the trial court’s factual finding that the conditions at the Department of Corrections facilities posed a threat of immediate and irreparable injury to the defendant was made on an inadequate factual record and consequently does not impair our holding. Finally, because no full evidentiary record was properly developed below, it has not been established that defendant will not be afforded the treatment to which he has a statutory right nor that the actual operation of MCL 768.36; MSA 28.1059 violates the Eighth Amendment’s ban on cruel and unusual punishment. On this record those challenges to this statute must fail.
IV. The Probation Provision
A final challenge to the statute remains for our consideration.
Defendant contends that the provision governing the grant of probation to guilty but mentally ill persons violates the equal protection and due proc ess clauses of our Federal and state constitutions by providing that the period of probation "shall not be for less than 5 years”. MCL 768.36(4); MSA 28.1059(4).
The challenged statutory provision provides:
"(4) If a defendant who is found guilty but mentally ill is placed on probation under the jurisdiction of the sentencing court pursuant to law, the trial judge, upon recommendation of the center for forensic psychiatry, shall make treatment a condition of probation. Reports as specified by the trial judge shall be filed with the probation officer and the sentencing court. Failure to continue treatment, except by agreement with the treating agency and the sentencing court, shall be a basis for the institution of probation violation hearings. The period of probation shall not be for less than 5 years and shall not be shortened without receipt and consideration of a forensic psychiatric report by the sentencing court. Treatment shall be provided by an agency of the department of mental health, or with the approval of the sentencing court and at individual expense, by private agencies, private physicians, or other mental health personnel. A psychiatric report shall be filed with the probation officer and the sentencing court every 3 months during the period of probation. If a motion on a petition to discontinue probation is made by the defendant, the probation officer shall request a report as specified from the center for forensic psychiatry or any other facility certified by department of mental health for the performance of forensic psychiatric evaluation.”
A. Argument
Defendant contends that the requirement of a minimum period of probation for defendants found to be guilty but mentally ill denies equal protection because it adversely affects their fundamental liberty interest vis-á-vis defendants found generally guilty of the same probationable offenses, without establishing a compelling state interest for the different treatment. This provision, it is argued, also subjects defendants found guilty but mentally ill to a greater deprivation of liberty than other guilty defendants on the basis of mental illness, without requiring a showing that the mental illness exists at the time of sentencing. Defendant also argues that even if mental illness at the time of sentencing is a legitimate consideration for differentiating between defendants, the statute still offends equal protection because it mandates treatment for the mentally ill class that will not be provided. Consequently, this classification is said to be unconstitutionally arbitrary.
Defendant’s final contention is that this provision violates due process by failing to provide a hearing on the issue of mental illness at the time of sentencing before imposing a more severe term of probation on guilty but mentally ill defendants than would otherwise be provided defendants convicted of the same probationable offenses.
B. Present Mental Illness
We note at the outset that it is our duty to presume the constitutionality of a statute and construe it as constitutional unless the contrary clearly appears. People v McQuillan, 392 Mich 511, 536; 221 NW2d 569 (1974); Sullivan v Michigan State Board of Dentistry, 268 Mich 427, 429-430; 256 NW 471 (1934).
It is evident from a reading of the probation provision, in the context of the entire statute, that the mental illness of defendants sentenced under it is the basis for the specific statutory directive for a five-year period of probation.
Concededly this provision does not explicitly require an inquiry into a defendant’s mental health at the time of sentencing. However, we find that it obviously contemplates such an inquiry and implicitly requires one.
This statutory provision specifically requires the sentencing judge who places on probation a defendant who has been found guilty but mentally ill to make treatment a condition of probation upon the .recommendation of the Center for Forensic Psychiatry. Practically speaking, no such recommendation could be made until the center has been afforded the opportunity to evaluate the defendant’s mental health and to determine the need for treatment, if any. Conversely, the sentencing court could not determine that treatment need not be a condition of probation until after it has considered all relevant factors, including the defendant’s mental health.
Consequently, we hold that this statute requires a sentencing court to obtain a report from the Center for Forensic Psychiatry evaluating a defendant’s present mental health prior to sentencing a defendant found guilty but mentally ill.
C. Due Process
Defendant appears to contend that more than this is required. He maintains, on the authority of People v McQuillan, supra, that guilty but mentally ill defendants are entitled by due process requirements to a hearing on the issue of their present mental health. If defendant means that a full civil commitment hearing akin to that provided in McQuillan is required, we do not agree.
McQuillan held that a person who had been found not guilty by reason of insanity could not thereafter and on that basis be committed automatically to the Department of Mental Health. That verdict only established that there was a reasonable doubt as to defendant’s sanity at the time of the crime and thus he was not to be held criminally responsible for his acts. Consequently, because institutionalization would constitute a significant restriction on such a person’s right to liberty, due process required a sanity hearing to determine that person’s present mental condition and equal protection required that the hearing be substantially similar to other civil commitment proceedings. 392 Mich 537.
Guilty but mentally ill defendants are in a wholly different position than defendants found not guilty by reason of insanity. The former have been found beyond a reasonable doubt to have been 1) guilty of an offense, 2) mentally ill at the time of the commission of the offense, and 3) not legally insane at the time of the offense.
They no longer have a right to unfettered liberty. They have been convicted of a crime. Their only interest is in obtaining a term of probation similar to other persons convicted of the same crime.
The McQuillan Court recognized that "[d]ue process analysis focuses on the question of which rights and protections are essential to constitutional procedure in a given situation”. 392 Mich 530-531.
This is consistent with the general approach taken by the United States Supreme Court for testing challenged state procedures under a due process claim. As recently stated by that Court, its general approach requires a balancing of the private interest that is affected by the official action, the state’s interest in the procedures it has adopted, and how well the procedures protect against arbitrariness in the making of the official decision. Parham v J R, 442 US 584, 599-600; 99 S Ct 2493; 61 L Ed 2d 101 (1979).
The private interest that is affected by the official action challenged here is one that is legislatively created. In People v Rial, 399 Mich 431, 437; 249 NW2d 114 (1976), this Court recognized, citing MCL 771.4; MSA 28.1134, that probation, in lieu of sentencing, is purely a matter of grace, not of right. It rests in the sound discretion of the trial court, People v Marks, 340 Mich 495, 499; 65 NW2d 698 (1954), with the source of the trial court’s probation authority in the Legislature. People v Davis, 392 Mich 221, 226; 220 NW2d 452 (1974). Consequently, we are not evaluating a restriction on defendant’s fundamental right to liberty, but a restriction on the granting of an interest that is legislatively created.
Balanced against this interest is the state’s interest in assuring that mentally ill criminals are provided supervised treatment for their mental illness for a sufficient period of time to assure that their mental health is restored.
We find that defendant’s interest in the legislatively created sentencing alternative of probation will be protected adequately if the sentencing court is required to obtain a report on defendant’s present mental health prior to sentencing and provides a procedure for review to allow shortening or discontinuing the period of probation if the reasons for the five-year period no longer obtain. Such procedures strike a constitutional balance between defendant’s interest in a period of probation of less than five years and society’s interest in assuring that mentally ill criminals are provided supervised treatment for a period of time sufficient to determine that their mental health is restored.
We have already found that this statute requires a report on defendant’s present mental health prior to sentencing. We hold further that the statute permits a sentencing court to place a defendant on probation for a shorter period than five years and provides for periodic review of the continuing need for treatment and a procedure for discontinuing probation when there is no further need for treatment.
The apparently mandatory five-year period of probation is actually a qualified command to sentencing courts. The pertinent statutory language reads:
"The period of probation shall not be for less than 5 years and shall not be shortened without receipt and consideration of a forensic psychiatric report by the sentencing court.” MCL 768.36(4); MSA 28.1059(4).
In order to give commonsense meaning to the second phrase of this sentence, we read it as authorizing the sentencing court to shorten the presumptive five-year period of probation if any forensic psychiatric report obtained prior to sentencing or during the period of probation indicates that a shorter period would be appropriate.
Periodic review of the continuing need for treatment is statutorily required:
"A psychiatric report shall be filed with the probation officer and the sentencing court every 3 months during the period of probation.” MCL 768.36(4); MSA 28.1059(4).
Furthermore, the statute clearly authorizes a sentencing court to discontinue probation on the motion of the defendant when there is no further need for treatment.
"If a motion on a petition to discontinue probation is made by the defendant, the probation officer shall request a report as specified from the center for forensic psychiatry or any other facility certified by [the] department of mental health for the performance of forensic psychiatric evaluation.” MCL 768.36(4); MSA 28.1059(4).
We find, these provisions afford guilty but mentally ill defendants who are placed on probation required due process protections.
D. Equal Protection
We cannot accept defendant’s argument that the classification of guilty but mentally ill defendants in the probation provision of this statute infringes on a fundamental right and can only be sustained if it satisfies a compelling state interest. As we have already stated, a guilty but mentally ill defendant has no right to the exercise of unfettered liberty. Such a defendant has been found guilty beyond a reasonable doubt in a judicial proceeding providing the full panoply of rights and protections guaranteed to the criminally accused under both our Federal and state constitutions. Such a defendant’s liberty may be constitutionally circumscribed by the state.
Consequently, we construe this argument as a challenge to the legislative classification of guilty persons who are mentally ill vis-á-vis guilty persons who are not. The classification of "mentally ill” in this context has none of the indicia of a suspect class.
Because neither a suspect class nor a fundamental right is involved in this classification, it will be upheld in the face of an equal protection challenge under both our Federal and state constitutions if it rationally furthers the object of the legislation. San Antonio Independent School Dist v Rodriguez, 411 US 1, 40, 55; 93 S Ct 1278; 36 L Ed 2d 16 (1973); McGinnis v Royster, 410 US 263, 270; 93 S Ct 1055; 35 L Ed 2d 282 (1973); In re Kasuba Estate, 401 Mich 560, 568-569; 258 NW2d 731 (1977).
This is also in accord with the statement of the United States Supreme Court quoted approvingly by this Court in McQuillan, 392 Mich 534.
"Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.” Baxstrom v Herold, 383 US 107, 111; 86 S Ct 760; 15 L Ed 2d 620 (1966).
It is apparent that the Legislature’s object in creating this new verdict was to assure supervised mental health treatment and care for those persons convicted under the laws of our state who are found to be suffering from mental illness, in the humane hope of restoring their mental health and possibly thereby deterring any future criminal conduct on their part.
In order to assure this treatment, the Legislature provided that probationary terms for guilty but mentally ill persons will be for a rebuttable five-year period under the continuing supervision of the sentencing court. The Legislature also provided that the probation could be shortened or discontinued if the need for treatment no longer obtained.
We think this classification rationally furthers the legislative object of providing supervised mental health treatment and care to guilty but mentally ill defendants who are placed on probation.
Finally, we cannot find this statute created an arbitrary classification because the mandated treatment would not be provided to guilty but mentally ill defendants placed on probation. We have already held the sentencing trial court was an inappropriate forum to decide this question in this case.
We find no violation of equal protection in the statute’s probation provision.
V. Conclusion
Although we, like the Court of Appeals, are not without sympathy for the commendable objectives of the trial judge, we find no constitutional infirmity in this statute on the record before us.
The judgment of the Court of Appeals is affirmed.
Coleman, C.J., and Fitzgerald, J., concurred with Ryan, J.
MCL 768.36(3); MSA 28.1059(3) provides:
"(3) If a defendant is found guilty but mentally ill or enters a plea to that effect which is accepted by the court, the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense. If the defendant is committed to the custody of the department of corrections, he shall undergo further evaluation and be given such treatment as is psychiatrically indicated for his mental illness or retardation. Treatment may be provided by the department of corrections or by the department of mental health after his transfer pursuant to sections 1000 or 1002 of Act No. 258 of the Public Acts of 1974, being sections 330.2000 or 330.2002 of the Michigan Compiled Laws. Sections 1004 and 1006 of Act No. 258 of the Public Acts of 1974 shall apply to the discharge of such a defendant from a facility of the department of mental health to which he has been admitted and shall apply to the return of such a defendant to the department of corrections for the balance of the defendant’s sentence. When a treating facility designated by either the department of corrections or the department of mental health discharges such a defendant prior to the expiration of his sentence, that treating facility shall transmit to the parole board a report on the condition of the defendant which contains the clinical facts, the diagnosis, the course of treatment, and the prognosis for the remission of symptoms, the potential for recidivism and for the danger to himself or the public, and recommendations for future treatment. In the event that the parole board pursuant to law or administrative rules should consider him for parole, the board shall consult with the treating facility at which the defendant is being treated or from which he has been discharged and a comparable report on the condition of the defendant shall be filed with the board. If he is placed on parole by the parole board, his treatment shall, upon recommendation of the treating facility, be made a condition of parole, and failure to continue treatment except by agreement with the designated facility and parole board shall be a basis for the institution of parole violation hearings.”
The trial court’s verdict reads, in pertinent part:
"First of all, I am convinced beyond a reasonable doubt that the offense of arson was committed by the defendant.
"Secondly, I must determine whether or not the defendant was legally sane at the time of the commission of this offense. And then I must determine, if I find the defendant was legally sane, beyond a reasonable doubt, then I must determine whether or not he is guilty but mentally ill.
"Now, the test for mental * * * for legal insanity is whether the defendant lacks the substantial capacity or ability to know that what he was doing is wrong. And whether he had the substantial ability to conform his conduct to the law which he’s charged with violating.
"It seems evident to me that the defendant had been drinking that day. And the statute specifically states that drinking in and of itself would not be a defense. In addition, the report of Dr. Danto indicates the defendant may be suffering from amnesia as a result of a large intake of alcohol the day of the offense.
"I think from the testimony of the defendant and from the reports that have been received into evidence that the defendant could appreciate the wrongfulness of his conduct, and that he had the substantial ability to conform his conduct to the requirements of the law that he is charged with violating.
"I think that what he did was to attract attention to himself in order to get help for himself. Although I think that he was legally sane at the time of committing this act, I think that he was mentally ill and is now mentally ill.
"So that my verdict is guilty but mentally ill. I am going to order that the Forensic Center take custody of him immediately. And present me with a report of their recommendations.”
See footnote 8, infra.
The trial court also held that the statute unconstitutionally denied equal protection of the laws to those defendants who believe they are mentally ill but not insane and consequently do not assert the defense of insanity as required to obtain an instruction on the guilty but mentally ill verdict. MCL 768.29a(2); MSA 28.1052(1)(2) and MCL 768.36(1); MSA 28.1059(1). This contention was not urged by defendant in his delayed application for leave to appeal nor was it an issue on which leave to appeal was granted. Consequently, it would not be proper for us to consider this challenge to the statute.
All of the cases cited by defendant as authority for courts to exert control over prison systems in which inmates are deprived of certain constitutional rights are inapposite to the instant case. In each of those cases the officials responsible for providing the care sought were parties to the proceeding before the court.
US Const, Am VIII.
US Const, Am XIV; Const 1963, art 1, §§ 2, 17.
The . trial court found that treatment would not be provided to defendant by the Department of Mental Health on an in-patient basis if in-patient treatment were made a condition of probation.
When defendant was sentenced to probation following the Court of Appeals opinion in this case, "psychiatric treatment proscribed [sic] by the Department of Mental Health, as mandated by [MCL 768.36(4); MSA 28.1059(4)]” was made a condition of probation. Nothing was said about in-patient treatment.
Whether a sentencing court has the authority to order in-patient treatment by the Department of Mental Health as a condition of probation is a question not presently before this Court. We note only that the due process procedures we find appropriate in this case are subject to further review if the question of the propriety of in-patient treatment as a condition of probation under this statute is ever presented to this Court.
The traditional indicia of suspectness are: the class is saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. San Antonio Independent School Dist v Rodriguez, 411 US 1, 28; 93 S Ct 1278; 36 L Ed 2d 16 (1973). | [
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Per Curiam.
The question before us is whether 1978 PA 426, increasing the gasoline tax from 9 to 11 cents per gallon and the diesel motor fuel tax from 7 to 9 cents, and 1978 PA 427, increasing the motor vehicle registration tax, among other things, are subject to referendum. We hold that they are not.
I
On February 10, 1977, the Governor delivered a special message to the Legislature inviting their attention to the whole transportation framework in Michigan:
"These changes — to a comprehensive, unified approach to transportation funding and planning and policy development — must be made. Among the factors that have led me to this conclusion are the following:
" — Present revenues for financing transportation have stabilized or declined compared to other sources of revenues.
" — According to the U.S. Department of Commerce, local-state expenditures for transportation services and highways, roads and streets are lower proportionately in Michigan than in other comparable states in the Midwest and Northeast.
" — Rising inflation has been particularly detrimental to transportation capital outlay programs and highway and airport construction needs, as well as maintenance costs and operating expenses.
" — The motor vehicle weight tax, a major source of transportation financing, is not well correlated with ability to pay.
" — At present, there is a fragmented intergovernmental approach toward transportation planning at the local level.
" — Existing constitutional or legislative restrictions blur accountability in the administration of state transportation programs.
"The estimated new revenue produced by proposals in this message amounts to at least $144.8 million during each of the next ñve ñscal years. If enacted by May of this year, an additional $47.1 million would be generated in this fiscal year to support transportation programs in Michigan.
"The transportation plan would:
" — increase funds for city and village streets by $23.4 million annually, to a total of $132.9 million — an increase of 21 percent over the current annual amount;
" — increase funds for county roads by $42.4 million each year to a total of $239.9 million — an increase of 23 percent;
" — add $48 million per year for programs administered by the Department of State Highways and Transportation, bringing the annual total to $320 million — an increase of 17.6 percent;
" — pay the entire $31 million cost of State Police patrolling of all 9,400 miles of state freeways and highways.
"Tax Recommendations
"In connection with these goals, I am recommending an increase in motor fuel taxes and revisions in the vehicle weight tax.
"7 am recommending an increase in the gasoline and diesel fuel taxes to 11 cents per gallon. In addition, I am recommending the imposition of the diesel fuel tax on diesel fuel used by railroad locomotives. ”
Representatives Ryan and Brotherton introduced House Bill 4407 on March 23, 1977, increasing the tax on gasoline and diesel motor fuel. That same day Representative Montgomery introduced House Bill 4408, providing for an increase in the vehicle weight tax different from that proposed by the Governor. Both were referred to the House Taxation Committee. 1 Michigan House Journal (1977) 605. Other bills to implement the Governor’s proposals were introduced as well. The House Legislative Analysis of HB 4408 is instructive of the "package” nature of these bills:
"The bill is part of a package of proposed legislation its supporters say would provide the state with a comprehensive transportation program. House Bill 5656 would change the name of the Motor Vehicle Highway Fund to the Michigan Transportation Fund and would establish a State Department of Transportation Fund which would receive money from the gas/diesel fuel tax and the vehicle weight tax, a portion of which would go to support a comprehensive transportation fund (metropolitan bus systems, rail passenger and freight systems, intercity programs, dial-a-ride, small bus systems, and airport improvement programs). House Bill 4407 would increase the tax on gasoline to 11 cents a gallon (it is now 9) and on diesel fuel to 9 cents a gallon (it is now 7), the revenue going to the Transportation Fund. House Bill 5654 would specify that part of the sales tax on auto dealers, parts dealers, and service stations would go to the comprehensive transportation fund. House Bill 4409 would change the name of the Department of State Highways and Transportation to the Transportation Department, and redefine the responsibilities, powers, and duties of the department director and the Highway Commission. House Bill 4410 would amend the Executive Organization Act to change the name of the department, establish job qualifications for the director (at least 5 years of experience in highway or transportation engineering, or possession of an engineering degree), and bring both the Department of Aeronautics and the Aeronautics Commission into the Department of Transportation. House Joint Resolution F would change the name of the Highway Commission to the Transportation Commission, expand the commission to 6 members (from 4), reduce terms from 4 years to 3, specify that the Director of the Department of Transportation be appointed by the governor, and delete the requirement that the director be a highway engineer. House Bill 6080 would transfer aviation tax revenues in the aeronautics fund to the comprehensive transportation fund. House Bill 6081 would specify that marine gasoline tax revenues continue to go to the Waterways Fund at the present amount (1.25% of all fuel taxes other than the diesel tax collected in 1977), but that anything above that amount go to the comprehensive transportation fund.”
Speaker Crim’s opening day remarks on January 11, 1978, were in a vein similar to the Governor’s:
"The need is obvious. A balanced transportation system — good roads, streets and highways combined with sound bus, rail, air and water programs demands immediate passage of the transportation package. Without adoption of the package, much of this will be lost. Therefore I am calling, on the Governor and my fellow legislative leaders not only to recognize this acute need, but also to join with me in a vigorous campaign to effect immediate passage of the transportation package. It is our responsibility to demonstrate to the people of this state the absolute necessity of this package, including the tax increase required for financing.”
Among the results were:
1) 1978 PA 426, increasing fuel taxes, on which legislative action was completed on September 28 and the Governor’s signature obtained September 30;
2) 1978 PA 427, increasing the motor vehicle weight tax, on which legislative action was completed on September 27 and the Governor’s signature obtained September 30; and
3) 1978 PA 444, providing among other things for the allocation of Michigan transportation funds, on which legislative action was completed on September 28 and the Governor’s signature obtained October 10.
The acts contain no "tie-bar” language.
II
Const 1963, art 2, § 9 provides in part:
"The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.”
On January 2, 1979, the People Against Higher Taxes filed with the Secretary of State petitions seeking referendum of 1978 PA 426. On January 9, 1979, the group similarly filed petitions seeking referendum of 1978 PA 427. On January 3, 1979, the County Road Association filed a complaint for mandamus in the Court of Appeals; Michigan Road Builders’ Association, Inc., filed a similar complaint on January 12, 1979. The plaintiffs sought an order preventing the Board of State Canvassers from certifying the sufficiency of the petitions. On January 12, 1979, the Court of Appeals entered an order setting the cases for oral argument and directed
"that defendant Board of State Canvassers desist from making any official declaration of sufficiency or insufficiency of the petitions for referendum on 1978 PA 426 and 1978 PA 427 until further order of this Court. In the meantime, the Elections Division of the Department of State may proceed with the canvass of the petitions in the ordinary course, but shall not present its staff recommendation to the Board of State Canvassers while this stay is in effect.”
On March 30, 1979, the Court of Appeals entered the requested order of mandamus as to 1978 PA 426, but not as to 1978 PA 427, finding the latter to be subject to referendum. 89 Mich App 299; 279 NW2d 334 (1979). Judge Cavanagh dissented as to 1978 PA 427. Because timely applications for leave to appeal were filed in this Court, the Court of Appeals stay of January 12, 1979, remained in effect. 406 Mich 1119 (1979).
Ill
The gasoline tax was initially enacted in a single statute which also established the method for distributing the revenue collected. 1925 PA 2. This Court was quickly asked in a mandamus action whether the statute was subject to referendum under Const 1908, art 5, § l. We said:
"Considering these constitutional exceptions in the order stated, the first question to be determined is whether this is an act making appropriations for a State institution. It appropriates money for the use of the highway department in constructing and maintaining the highways of the State. Is the highway department a State institution within the meaning of the Constitution? The question is not solely whether the highway department may be correctly termed a State institution, but rather whether, in view of the functions which it exercises, it comes within the meaning of that term as used in the Constitution. It is not difficult to determine what the framers of the Constitution had in mind. It is clear that by permitting immediate effect to be given to appropriation acts for State institutions, it was their purpose to enable the State to exercise its various functions free from financial embarrassment. The highway department exercises State functions. It was created by the legislature for that purpose. It must have money to carry on its activities. Without the money appropriated by this act for its immediate use, it would cease to function. The constitutional purpose was to prevent such a contingency. And so we hold it a fair conclusion that the framers of the Constitution used the term State institutions in a broad sense intending to include all organized departments of the State to which the legislature had delegated or should delegate the exercise of State functions.
"We are of the opinion that the State highway department is a State institution within the meaning of the Constitution, and that, therefore, this act, which makes an appropriation for its use, is not subject to the referendum.” Detroit Automobile Club v Secretary of State, 230 Mich 623, 625-626; 203 NW 529 (1925).
We reaffirmed that the legislation was not subject to referendum after the Legislature enacted a new gasoline tax in 1927 PA 150. Moreton v Secretary of State, 240 Mich 584, 591-592; 216 NW 450 (1927).
In 1951, the Legislature used five acts to accomplish its purpose of increasing the fuel and weight taxes and distributing the revenue collected. 1951 PA 51 was the predecessor of 1978 PA 444 in establishing the Motor Vehicle Highway Fund, providing for the deposit in the fund of specific tax revenue, and allocating the money deposited. 1951 PA 54 amended 1925 PA 2 to increase the fuel taxes; under § 18b,
"All sums of money received and collected under the provisions of this act, except the license fees provided for herein, shall be deposited in the state treasury to the credit of the motor vehicle highway fund and, after the payment of the necessary expenses incurred in the enforcement of this act, are hereby appropriated, allocated and apportioned therefrom to the state highway department, the several county road commissions, and incorporated cities and villages of the state in the manner and for the specific highway purposes prescribed by law.”
In a mandamus action, we were asked to decide whether 1951 PA 54 was subject to referendum. The argument made was that 1951 PA 51 actually made the appropriation and therefore 1951 PA 54 was not an appropriation act and was subject to referendum.
We said:
"Acte 51 to 55, inclusive, PA 1951, to which plaintiffs thus point, constitute a comprehensive system for the collecting of speciñc taxes on motor vehicles and motor vehicle fuels, the allocation of funds therefrom and the use thereof for highway purposes. They were all enacted by the 1951 legislature and became effective at the same time. Construed together, they provide for levying the specific taxes and the use thereof for highway purposes, the manner in which the said appropriations for highway purposes are allocated to said institutions, and the specific highway purposes for which they are to be used by said institutions. Act 51 allocates said funds, after payment of necessary expenses, as follows: 44% to the State highway department, 37% to the several county road commissions, and 19% to incorporated cities and villages which contain State trunk line highways; and declares that all of it shall be used only for highway purposes.
"Acts in pari materia must be considered and construed together. Act 54, levying the specific tax and appropriating it to these institutions 'for the specific highway purposes prescribed by law,’ necessarily points directly to those other acts for the apportioning of said moneys and for directing the manner of its use. If considered separately, without construing them together, they would be unworkable. Furthermore, if Act 51, instead of Act 54, appropriates these moneys, then Act 51 as well as Act 54 would fall; because Act 51 expressly provides (section 23) that it shall not take effect unless Act 54 also be enacted into law and become effective. Act 51 could not operate without Act 54, being without the funds appropriated by said Act 54.” (Emphasis added.) Michigan Good Roads Federa tion v State Board of Canvassers, 333 Mich 352, 360-361; 53 NW2d 481 (1952).
In 1972, the Legislature again increased the gasoline tax. 1972 PA 326 and 1972 PA 327. An amended § 18b was included. The acts were "tie-barred” and enacted the same day. In Boards of County Road Commissioners v Board of State Canvassers, 391 Mich 666, 674; 218 NW2d 144 (1974), we were again asked to consider whether the tax increase was subject to referendum and held it was not:
"The acts were enacted on the same day as part of a single legislative program. Each act included a so-called tie-bar provision that it 'shall not take effect’ until the other act is 'enacted into law.’
"While Act 327 (apportioning and appropriating the monies in the highway fund) would be viable even if Act 326 (raising the gasoline tax) were subjected to a referendum and defeated, as the motor vehicle highway fund would still be receiving and apportioning the net revenue from the former seven cents a gallon tax, it is apparent that the Legislature predicated the new appropriations for mass transit and the critical bridge program on a nine cents gasoline tax.
"If these new appropriations were effective independently of the validity of the nine cents gasoline tax, a defeat of PA 326 would mean that the state highway department and county road commissioners would receive less money than before from the highway fund to finance previously authorized and contemplated programs. We are persuaded that was not the intention of the Legislature.”
IV
1978 PA 426 included amendments to both § 18b and § 34:
"Sec. 18b. All sums of money received and collected under this act, except the license fees provided for in this act and after the payment of the necessary expenses incurred in the enforcement of this act, shall be deposited in the state treasury to the credit of the Michigan transportation fund.” MCL 207.118b; MSA 7.308(2).
"Sec. 34. All sums of money received and collected by the secretary of state under this chapter [chapter 2, the diesel motor fuel tax], except the license fees herein provided, shall be deposited in the state treasury to the credit of the Michigan transportation fund, and after the payment of the necessary expenses incurred in the enforcement of this chapter shall be appropriated, allocated and apportioned therefrom to the department of transportation, the several county road commissions and incorporated cities and villages of the state in the manner and for the specific highway purposes prescribed by law.” MCL 207.134; MSA 7.316(14).
1978 PA 427 did not amend § 810 of the statute, although it did amend 1949 PA 300 which included that section and also amended § 802 which provides for the deposit of certain fees and taxes in the state general fund or the Motor Vehicle Highway Fund and earmarks the use of those revenues.
1978 PA 444 clearly brought the 1978 PA 426 and 1978 PA 427 revenues within the newly-named Michigan Transportation Fund:
"Sec. 10. A fund to be known as the Michigan transportation fund is established and shall be set up and maintained in the state treasury as a separate fund. Money received and collected under Act No. 150 of the Public Acts of 1927, as amended, being sections 207.101 to 207.194 of the Michigan Compiled Laws, except a license fee provided in that act, and a tax, fee, license, and other money received and collected under sections 801 to 810 of Act No. 300 of the Public Acts of 1949, as amended, being sections 257.801 to 257.810 of the Michigan Compiled Laws, and money received under Act No. 254 of the Public Acts of 1933, as amended, being sections 475.1 to 479.49 of the Michigan Compiled Laws, shall be deposited in the state treasury to the credit of the Michigan transportation fund. In addition, income or profit derived from the investment of money in the Michigan transportation fund shall be deposited in the Michigan transportation fund. No other money, whether appropriated from the general fund of this state or any other source, shall be deposited in the Michigan transportation fund. After the payment of the amounts appropriated by the legislature for the necessary expenses incurred in the administration and enforcement of Act No. 150 of the Public Acts of 1927, as amended, Act No. 254 of the Public Acts of 1933, as amended, and sections 801 to 810 of Act No. 300 of the Public Acts of 1949, as amended, and after deduction of the amount appropriated pursuant to section 93 of Act No. 150 of the Public Acts of 1927, being section 207.193 of the Michigan Compiled Laws, and the amounts appropriated pursuant to section lib, all money in the Michigan transportation fund is apportioned and appropriated for each fiscal year as follows: (a) 46.7% of the fund to the department of transportation for the uses described in sections 10b and 11, (b) 34.3% of the fund to the county road commissions of the state, and (c) 19.0% of the fund to the cities and villages of the state. The money appropriated pursuant to this section shall be used for the purposes as provided in this act and any other applicable act.”
V
Like the 1951 and 1972 legislation, we believe the 1978 acts must be viewed as a comprehensive, single legislative program. Both the Governor’s stated approach and what legislative history is available suggest, in the language of the 1952 Court, "a comprehensive system for the collecting of specific taxes on motor vehicles and motor vehicle fuels, the allocation of funds therefrom and the use thereof for [transportation] purposes”.
Intervening defendants attribute too much significance to the Legislature’s failure to "tie-bar” the acts. Legislation need not be tie-barred or even specifically refer to other legislation to be read in pari materia:
"Statutes in pari materia are those which relate to the same person or thing, or the same class of persons or things, or which have a common purpose. It is the rule that in construction of a particular statute, or in the interpretation of its provisions all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although enacted at different times, and containing no reference one to the other.” Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558; 132 NW2d 660 (1965).
Section 10 of 1978 PA 444, §§ 18b and 34 of 1978 PA 426, and §802 of 1978 PA 427, reviewed in light of what we said in 1974 and 1952, lead us inescapably to the conclusion that these statutes must be read in pari materia and thus, under the rule we have previously established, 1978 PA 426 and 1978 PA 427 are not subject to referendum.
The Attorney General argues that both public acts are subject to referendum. He says that the only appropriation act was 1978 PA 468, the appropriation act for the Department of State Highways and Transportation. This argument seems to ignore our 1974 and 1952 decisions. In addition, Const 1963, art 9, § 9, and 1951 PA 51, as amended, are self-executing and make transportation tax legislation unique. MCL 247.667; MSA 9.1097(17), for example, clearly explains what the State Treasurer’s duties are regarding disbursement of the fund; these duties would have to be executed regardless of what the appropriation act for the Department of State Highways and Transportation had provided.
He also argues that 1978 PA 426 cannot be held to be an appropriation act without violating Const 1963, art 4, § 31. We agree with the Court of Appeals resolution of that argument:
"That section is inapplicable because 1978 PA 426, 427 and 444 were part of general appropriation bills as defined by Const 1963, art 4, § 31, and those bills were part of the Governor’s budget. Article 4, § 31 seeks to avoid the passage of appropriation bills for items not in the budget before general appropriation bills for items in the budget are approved.” 89 Mich App 306.
Relying on Board of Education of Oakland Schools v Superintendent of Public Instruction, 392 Mich 613; 221 NW2d 345 (1974), and Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465; 242 NW2d 3 (1976), the Attorney General also argues that § 34 must be read only as an intention to appropriate in future years or we would also face a violation of Const 1963, art 4, § 31. Both of those opinions involved expenditures from the general fund, not special funds:
"The Michigan Constitution of 1963 brought to this state new measures designed to require an annual review of the budget and to provide for annual fiscal accountability in both the legislative and executive branches. See, Const 1963, art 4, § 31 and art 5, § 18 and the 'Convention Comment’ accompanying each section. * * * The Legislature would be, in effect, appropriating in advance of its ability to accurately forecast available revenues and would thereby be unable to match revenue with appropriations as required by Const 1963, art 4, § 31. In addition, such prospective appropriations would force the Governor to approve or veto the expenditure far in advance of his ability to assess the fiscal needs of the state. See generally, Const 1963, art 5, §§ 18 and 19.” 392 Mich 621.
There is no question of "forecasting” with this special fund; no more is expended than is actually received.
Finally, the Attorney General contends that a decision that the acts are not subject to referendum will frustrate the people’s reserved right of referendum. We believe we answered that argument in 1974:
"The construction placed by this Court on this exception to the right of referendum in the 1925 Detroit Automobile Club, 1927 Moreton and 1952 Good Roads cases may, indeed, in many instances deny the people a right to vote on new or increased taxes. If the question were one not previously considered, a different result might obtain. However, the identical question involving substantially the same language has been considered by this Court and settled.
"The delegates to the 1961 Constitutional Convention are presumed to have known and to have understood the meaning ascribed in these earlier decisions to the language of the 1908 Constitution. This language was retained by them in the 1963 Constitution without modification in response to the earlier decisions. Under well-established principles, it is not open to us to place a new construction on this language.” 391 Mich 676.
We are unable to find anything in the arguments of the parties, the legislative history of the 1978 enactments, or statutory or constitutional material cited to cause us to come to a conclusion as to this transportation package different from that reached in 1974 and 1952. The acts in question are not subject to referendum. The Court of Appeals is reversed in part and affirmed in part. That Court shall issue the requested order of mandamus as to the petitions for referendum of both 1978 PA 426 and 1978 PA 427.
No costs.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
See People v George, 399 Mich 638; 250 NW2d 491 (1977).
"The legislative power of the state of Michigan is vested in a senate and house of representatives; but the people reserve to themselves the power to propose legislative measures, resolutions and laws; to enact or reject the same at the polls independently of the legislature; and to approve or reject at the polls any act passed by the legislature, except acts making appropriations for state institutions and to meet deficiencies in state funds.”
"All fees received and money collected under sections 801 to 809, inclusive, shall be deposited in the state treasury and shall be credited to the motor vehicle highway fund.” MCL 257.810; MSA 9.2510.
"(a) For special plates or stickers issued as provided for in section 226(c), there shall be paid 1/2 the tax imposed under section 801 and in addition a fee of $2.00. The fee shall be credited to the general fund and used to defray the expenses of the special plates or stickers.
"(b) For all commercial vehicles registered after August 31 for the period expiring the last day of February or other vehicles registered after September 30 for the period expiring March 31, a tax of 1/2 the rate otherwise imposed by this act shall be collected. This section is not applicable to vehicles registered by manufacturers or dealers under sections 244 to 247.
"(c) For each special registration as provided for in section 226(e), a fee of $5.00 shall be collected. The fee shall be credited to the general fund and used to defray the expenses of the special registrations.
"(d) For temporary registration plates or markers as provided for in section 226a, a fee of $5.00 for each group of 5 of those temporary registration plates or markers shall be collected. The fee shall be credited to the motor vehicle highway fund and used to defray the expenses of the temporary registration plates or markers.
"(e) For each special registration as provided for in section 226b, a fee of $2.00 shall be collected, the fee to be credited to the motor vehicle highway fund and used to defray the expenses of the special registrations.
"(f) For registration plates as provided for in section 226a(c), (f), and (g), a fee of $40.00 for 2 sets and $20.00 for each additional set of plates shall be collected. The fee shall be credited to the motor vehicle highway fund and used to defray the expenses of the temporary plates or markers.
"(g) For special registrations issued for special mobile equipment as provided in section 216(d), a fee of $15.00 each for the first 3 special registrations, and $5.00 for each special registration issued in excess of the first 3 shall be collected. The fee shall be credited to the motor vehicle highway fund and used to defray the expenses of the plates or markers.
"(h) Beginning February 1, May 1, August 1, and November 1 of each year the secretary of state upon request, shall issue special license plates, tabs, or stickers for vehicles used in the logging industry to expire May 14, August 14, November 14, and February 14 following, if the full registration fee exceeds $50.00, on the payment of 1/4 the full registration fee and in addition a service charge of $2.00. The service charge shall be credited to the general fund of the state and used to defray the expense of the license plates, tabs, or stickers.” MCL 257.802; MSA 9.2502.
See, e.g-, the comments of Senators DeMaso and Welborn during Senate debate on the bills. Michigan Senate Journal (No. 105, 1978) 2131.
"All specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and on registered motor vehicles shall, after the payment of necessary collection expenses, be used exclusively for highway purposes as defined by law.”
"The general appropriation bills for the succeeding fiscal period covering items set forth in the budget shall be passed or rejected in either house of the legislature before that house passes any appropriation bill for items not in the budget except bills supplementing appropriations for the current fiscal year’s operation. Any bill requiring an appropriation to carry out its purpose shall be considered an appropriation bill. One of the general appropriation bills as passed by the legislature shall contain an itemized statement of estimated revenue by major source in each operating fund for the ensuing fiscal period, the total of which shall not be less than the total of all appropriations made from each fund in the general appropriation bills as passed.” | [
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Blair Moody, Jr., J.
This is an appeal from a November 4, 1977 order of the State Bar Grievance Board affirming an order of discipline filed by Ingham County Hearing Panel No. 2 on August 5, 1977. The order of discipline suspended respondent Robert A. McWhorter’s license to practice law for 121 days.
Respondent filed a timely claim of appeal and motion for stay of suspension. His motion for stay of suspension was granted on November 23, 1977. This Court vacated the order of discipline and dismissed the complaint filed against respondent. State Bar Grievance Administrator v McWhorter, 405 Mich 563 (1979). The majority determined that the client’s request to discontinue proceedings against respondent should have been honored by the State Bar Grievance Administrator. This determination was held to be dispositive of the case. The question whether the evidence supported the board’s findings of misconduct by respondent was therefore not addressed.
Rehearing was granted on April 5, 1979, 406 Mich 1117 (1979). On rehearing, the following issues present themselves for resolution:
I. Whether the desire of the client to discontinue proceedings against respondent should be held binding on the Grievance Administrator?
II. Whether the evidence presented before the hearing panel supports the board’s findings of misconduct on the part of respondent?
Following careful reevaluation of the record, we hold that the expressed wish of the client to discontinue proceedings against respondent was not binding upon the Grievance Administrator. Further, we find sufficient evidence on the record to support the board’s findings of misconduct on the part of respondent.
Facts
The following facts were adduced before the hearing panel. On October 27, 1969, respondent filed suit on behalf of Bonnie Beach and her two minor children seeking recovery for personal injuries sustained in an automobile accident. Mrs. Beach was appointed next friend for the purpose of prosecuting her children’s claims.
Respondent was successful in effecting a settlement. A consent judgment, embodying the terms of the settlement, was entered on October 27, 1969. The judgment provided that certain sums be paid to each child through their next friend. It also provided:
"It is further ordered that Bonnie Lee Beach in her capacity as Next of [sic] Friend for said minors, shall hold all sums received by her on behalf of said minors less the aforementioned attorney fees, in escrow for said minors until such time as there is appointed a General Guardian for said minors.”
No general guardian was appointed. Rather, upon respondent’s suggestion, respondent and Mrs. Beach entered into an oral agreement providing that respondent would take custody of the judgment proceeds, "invest” them, and insure that the children received a "good return on their investment” upon reaching the age of majority.
Mrs. Beach testified that during the five-year period following her agreement with respondent she made numerous requests of respondent to supply proof of where the children’s money had been invested. Mrs. Beach further testified that no satisfactory accounting was ever rendered.
In February of 1975, Mrs. Beach, accompanied by a detective from the Kalamazoo Sheriff’s Department, met with respondent and renewed her request for an accounting. Thereafter, respondent purchased two certificates of deposit, made payable to respondent as trustee for the two children, and exhibited the certificates to Mrs. Beach. By respondent’s own testimony, he later negotiated these certificates and loaned the proceeds to another client.
In August of 1975, Mrs. Beach forwarded a request for investigation to the State Bar Grievance Board. Following receipt of the request for investigation, respondent purchased two other certificates of deposit which were made payable to Mrs. Beach as trustee for the children. The amount of the certificates represented the principal amount received on behalf of the children in 1969 plus 7-1/2% interest compounded annually.
Shortly after respondent delivered these certificates to Mrs. Beach, she signed an affidavit indicating her desire to withdraw her request for investigation. The affidavit was prepared by respondent and forwarded to the Grievance Board by respondent in December of 1975.
Despite the client’s expressed desire that proceedings against respondent be discontinued, the Grievance Administrator conducted an investigation. A complaint charging respondent with misconduct was filed by the Grievance Administrator with the board in March of 1977.
Discussion
I
In the initial disposition of this case, the majority acknowledged that situations exist where the withdrawal of a request for investigation by a client need not be honored by the board. State Bar Grievance Administrator v Jackson, 390 Mich 147, 151-152; 211 NW2d 38 (1973). We believe that this is such a case.
In Jackson, supra, an accountant, having received no compensation for accounting services performed for an attorney, filed a request for investigation with the board. Following settlement with the attorney, the complainant withdrew his request for investigation. The Jackson Court held the Grievance Administrator had abused his discretion by filing a complaint in face of the complainant’s wish that the proceedings be discontinued. The Court concluded:
"[W]here the basic complaint involves a question of fees between two parties, and the complaining party is satisfied with a settlement offered by the attorney, we see no reason for the Grievance Administrator to continue to proceed against the attorney.” Jackson, supra, 152.
The Court in Jackson excepted from this rule situations where serious misconduct on the part of an attorney may be involved, stating:
"There are situations when the Grievance Administrator may continue to press a claim despite the wishes of a complaining party. Examples are when the actions of the attorney violated a criminal statute, consisted of fraud upon the court, or generally consisted of a pattern of conduct that brings disrepute on the Bar as a whole. ” (Emphasis added.) Jackson, supra, 151-152.
In the instant case, the complaint filed by the Grievance Administrator charged respondent with misconduct in his handling of trust funds received on behalf of the two minor children. The complaint alleged his failure to preserve the identity of the funds, to keep proper records concerning the funds, and to render appropriate accountings. The complaint further charged respondent with having commingled and converted the trust funds to his own use.
The allegations made in the instant complaint do not indicate the existence of a fee dispute. Rather, if proven to be true, they establish professional misconduct of a serious nature "that brings disrepute on the Bar as a whole”. Jackson, supra, 152. It is therefore concluded, under Jackson, that the Grievance Administrator was not bound by the client’s withdrawal of her request for investigation.
The rule set forth in Jackson, restricting the right of the Grievance Administrator to proceed, should not be expansively applied to situations, such as the present one, where serious misconduct on the part of the attorney has been charged. The decision of whether to proceed with a hearing on charges of attorney misconduct was vested in the State Bar Grievance Board. Grievance Board Rule 16.8. Jackson represents a limitation on that decision-making power.
Furthermore, Jackson represents a departure from the general rule followed in other jurisdictions to the effect that "[settlement with clients on a basis satisfactory to them * * * does not preclude inquiry into the moral and professional quality of an attorney’s acts prior to and in connection therewith”. 7 CJS, Attorney and Client, § 25(c), p 767. Cf. In re Coburn, 207 Mich 350, 361; 174 NW 134 (1919).
Expansive application of the Jackson rationale also tends to undermine the purpose of investigating occurrences of professional misconduct through the grievance machinery. The primary purpose of disciplinary proceedings has been to ensure "protection of the public, the courts and the legal profession”. Grievance Board Rule 16.34(d). Al though the complaint of a client may provide the initial impetus for investigation, grievance proceedings have never been intended to provide a forum for litigating claims of individual clients against their attorneys. This was recognized in State Bar of Michigan v Daggs, 384 Mich 729, 733; 187 NW2d 227 (1971), where the Court stated:
"In this procedure we are not concerned with enforcing the rights of the individuals involved. The civil courts are provided for that. Rather here we seek to make sure that all of us who hold ourselves out to the public as counsellors and agents in the administration of justice will so conduct ourselves as to merit the trust imposed in us.”
Responsibility for ensuring that the conduct of attorneys comports with standards of professional responsibility rests with the legal profession and, ultimately, with this Court. In instances where serious misconduct may be involved, the decision whether to proceed with an investigation should not repose with a client. This would not only fail to serve the public interest but could be construed as an abdication of responsibility. Accordingly, we conclude, under the facts of the instant case, the State Bar Grievance Administrator was free to proceed with the claim against respondent despite the expressed desire of the client that the investigation be discontinued.
II
We must also consider whether there exists adequate evidentiary support to sustain the board’s findings of misconduct by respondent.
The hearing panel found the following facts to have been established by a preponderance of evidence:
"2. That the panel finds that the allegation contained in the complaint in Paragraph J Subparagraph (a) was proven by the State Bar by a preponderance of evidence.[ ]
"3. That the said hearing panel as to Paragraph J Subparagraph (b) of the complaint, finds that the respondent did not handle the trust funds with honesty, fidelity and good faith and that as an attorney he should have known that the funds referred to in said paragraph should have been placed either with a guardian or other fiduciary appointed by a proper court and thereafter handled fully in accord with statutes pertaining to the investment of minors’ funds.
"4. The panel further finds that proper books of account and records concerning the administration of the trust funds were not kept by the respondent.
"5. That the respondent failed to disclose or to account to Bonnie Beach any information concerning the investments, the location, or the administration thereof, and that he failed to preserve the identity of the separate trust funds for the children of Mrs. Beach.
"6. That the respondent breached the duties which he had as a trustee of the Beach funds in that he failed to preserve the identity of the separate trust funds under his control, and further failed to maintain complete records of trust funds in his possession for the benefit of Bonnie Beach and for the benefit of the minor children. Further, that he failed to render accountings concerning the trust funds although requested by the said Bonnie Beach.”
Based upon these findings of fact the panel concluded that respondent had violated DR 9-102(B), subds (2), (3), and (4), and DR 1-102(A)(6).
DR 9-102(B), subds (2), (3), and (4), provides:
"(B) A lawyer shall:
"(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
"(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
"(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”
Upon concluding that respondent’s conduct had violated the provisions of these disciplinary rules, the hearing panel entered an order of discipline suspending respondent’s license to practice law for 121 days. On November 4, 1977, the State Bar Grievance Board adopted the findings and conclusions of the hearing panel and affirmed the order of discipline.
A hearing panel is empowered to enter an order of discipline only where it finds the charges have been established by a preponderance of the evidence. Grievance Board Rule 16.13. State Bar Grievance Administrator v Crane, 400 Mich 484, 493; 255 NW2d 624 (1977); State Bar Grievance Administrator v Posler, 390 Mich 581, 583; 213 NW2d 133 (1973); State Bar Grievance Administrator v Jackson, 390 Mich 147, 151; 211 NW2d 38 (1973). The function of this Court in reviewing the findings of the board is to determine whether there exists proper evidentiary support on the whole record to sustain the findings. In the Matter of Freedman, 406 Mich 256, 264; 277 NW2d 635 (1979); State Bar Grievance Administrator v Geralds, 402 Mich 387, 389; 263 NW2d 241 (1978); State Bar Grievance Administrator v Estes, 392 Mich 645, 649; 221 NW2d 322 (1974).
After careful review of the record, this Court concludes there exists ample evidence on the record as a whole to support the board’s findings of misconduct on the part of respondent. Clear violations of DR 9-102(B)(2) and DR 9-102(B)(3) were established by the testimony and exhibits. Respondent admittedly kept no records of the funds received in trust for the children. Over a five-year period respondent failed to render any meaningful accounting for the whereabouts of the funds despite repeated requests by Mrs. Beach. He failed to earmark these monies as property of his client or place them in a "place of safekeeping”. His unjustified treatment of the funds reflects adversely on his fitness to practice law.
Respondent raises a challenge to a conclusion reached by the board, namely, that respondent’s conduct violated DR 9-102(B)(4). The Court determines that this conclusion is indeed defective for three reasons. First, such misconduct was not charged in the complaint. An attorney may be disciplined for misconduct only where it has been charged in the complaint. State Bar Grievance Administrator v Corace, 390 Mich 419, 425; 213 NW2d 124 (1973); State Bar Grievance Administrator v Jackson, 390 Mich 147, 155; 211 NW2d 38 (1973). Second, no finding was made by the hearing panel or board that would support the conclusion that respondent violated DR 9-102(B)(4). Third, there exists insufficient evidentiary support on the record to sustain this conclusion.
With this one exception, the Court concludes there exists proper evidentiary support on the whole record to sustain the findings and conclusions of the board. The order of discipline imposed was fully warranted.
Conclusion
Accordingly, the findings and conclusions of the board are affirmed as modified. The order of discipline suspending respondent’s license to practice law for 121 days is also affirmed.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Blair Moody, Jr., J.
At the time of the agreement the children were five and one years of age.
The request for investigation filed by Mrs. Beach preceded the filing of the complaint by the Grievance Administrator. In the request for investigation, Mrs. Beach complained of respondent’s failure to render any meaningful accounting of where he had "invested” her children’s funds.
Compare Grievance Board Rule 16.8 with GCR 1963, 963, effective October 1, 1978. The rules governing attorney disciplinary proceedings were revised, effective October 1, 1978 and are included in Chapter 95 of the General Court Rules of 1963.
But see GCR 1963, 964.2, effective October 1, 1978, which provides in pertinent part:
"The unwillingness of a complainant to prosecute, or a settlement between the complainant and the respondent does not itself affect the right of the administrator to proceed.”
See also GCR 1963, 954.
Paragraph J of the complaint provided:
"[A]s trustee of the funds paid him for the benefit of Lori and Traci Beach, Respondent had the following duties:
"(a) To preserve the identity of the corpus of said trusts by earmarking same as money held by respondent as trustee.”
Compare GCR 1963, 964.10(1).
The board concluded that respondent had failed to "[promptly pay over or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive”. DR 9-102(B)(4). | [
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Coleman, C.J.
(to affirm). The plaintiff worked as a tire recapper for defendant Hosking Tire Company from 1964 to 1971 and in the same capacity for defendant Eureka Tire Company from 1971 to 1974. He ceased working for Eureka in 1974 because of a disabling degenerative disc disease for which he is now entitled to and does receive workers’ compensation benefits. The question presented is whether the last employer, Eureka, should bear full responsibility for payment of the benefits due plaintiff or whether that responsibility should be shared by both employers. The hearing referee factually found that the plaintiff’s back condition was caused by the repeated lifting and bending he was required to do in the course of his work for both employers. On the basis of this finding, the referee concluded that an apportionment of liability was required. The Worker’s Compensation Appeal Board accepted and independently verified the referee’s factual findings, but rejected his legal conclusion. The appeal board ruled on the basis of public policy, administrative precedent and statutory interpretation that an apportionment was not permitted in cases involving back conditions such as that suffered by the plaintiff. The Court of Appeals reversed the board and remanded for reinstatement of the referee’s original order apportioning liability. Defendant Hosking now appeals.
I would affirm the Court of Appeals. Given the particular factual findings of the referee and the appeal board in this case, apportionment was proper. If it is better public policy (less issues to be decided by the WCAB) to excise from "occupa tional disease” those having to do with the back, the Legislature is the proper forum.
I
The tire recapping process used by both defendants Hosking and Eureka required the plaintiff to engage in extremely repetitious and strenuous physical activity. The plaintiff testified that, in order to recap one tire, he had to lift the tire up and down into and out of various molds and machines a total of approximately 20 times. The lifting distance varied from three to four feet. The tires ranged in weight from 30 pounds to 150 pounds or more. The plaintiff did most of this lifting manually without help from his co-workers.
The plaintiff’s work during his seven years at Hosking was much more demanding than his work during his three years at Eureka. At Hosking he was required to recap 50 to 60 tires per day, while at Eureka he was only required to recap 20 to 35 tires per day.
After several minor back incidents in the course of his work at both Hosking and Eureka, the plaintiff suffered another incident at Eureka in December of 1973. Although he worked the rest of the day of this incident and continued to work thereafter, he remained in constant pain. He worked six more months until June of 1974 when the pain became too great and he was forced to cease work.
Two medical experts examined the plaintiff in connection with this case and both of them concluded that the plaintiff was suffering from "degenerative disc disease”. One of these experts, Dr. Sim, an orthopedic surgeon from Mayo Clinic, described this disease in lay terms as "[b]asically * * * a worn-out disc” and responded in the affirmative when asked whether this disease was a "process rather than an occurrence type of injury”. The other expert, Dr. Roberts, stated that the plaintiff’s back condition was of a type that "required prolonged stress, wear and tear, taking years to develop”.
Because the plaintiff had not been examined by these experts during the seven years he had worked at Hosking and because there were no X-rays of the plaintiff’s back dating from that period, neither doctor could state with a reasonable degree of medical certainty whether the degenerative disc disease had begun at Hosking and continued at Eureka or whether it had sprung up solely during the plaintiff’s final three years at Eureka. Based on the data available to them, the doctors could only be certain that the disease had been present since the more serious incident suffered by the plaintiff at Eureka in December of 1973. However, Dr. Sim did testify that it was "quite probable” that the plaintiff’s work at Hosking had either caused, contributed to, or accelerated the disease; and Dr. Roberts reiterated his view that the degenerative changes in the plaintiff’s back, as evidenced by current X-rays, were of "a type and result of rather prolonged wear and tear”.
The hearing referee factually found that the plaintiff’s back condition "was not caused by any single event but was the result of repeated trauma caused by lifting and bending in the course of his employment with the two defendant companies”. On the basis of this finding, the referee concluded that an apportionment of liability was required based on the respective lengths of time the plaintiff had worked for Hosking and Eureka.
Defendant Hosking appealed the referee’s findings and decision to the Worker’s Compensation Appeal Board (WCAB) arguing, inter alia, that the plaintiff’s back condition resulted solely from the single-event incident suffered by the plaintiff at Eureka in December of 1973 or from that incident plus subsequent aggravation caused by his continued employment at Eureka until June of 1974. Hosking contended that the plaintiff’s condition was compensable by virtue of Chapter Three of the Worker’s Disability Compensation Act. Because Chapter Three did not contain any apportionment provisions, there could be no apportionment.
The appeal board did not accept the factual propositions urged by defendant Hosking. The board stated:
"First, we proceed to our fact finding. We accept the referee’s factual conclusion and independently find that plaintiff’s disability is the result of his heavy lifting duties at both employers.”
The board then stated the legal question presented:
"Having made that finding, which directs that plaintiff’s disablement is compensable by virtue of the provisions of Chapter 4 * * * are we required to apportion liability by application of Section 435?”
The pertinent portion of § 435 to which the board referred states:
"The hearing referee shall apportion liability for compensation among the several employers in proportion to the time that the employee was employed in the service of each employer in the employment to the nature of which the disease was due and in which it was contracted * * (Emphasis added.)
The board concluded that this statute should not be read to require apportionment in cases involving degenerative disc disease caused by repeated lifting duties at two or more employers. The board candidly admitted that this conclusion was based on a "conscious policy determination” by the board and its predecessors not to treat back conditions as diseases for purposes of apportionment under § 435.
The primary reason given by the board for this policy determination was the possibility of an increase in litigation and a concomitant increase in the length of time a claimant must wait for benefits if the statute were to be read so as to include back conditions. In closing, the board added:
"Should our decision here be subject to Court review, and should the Court find insufficient the argument of policy and administrative precedent urged here (which we deem more than sufficient), we urge the consideration of a statutory rationale arising out of definitional differences in Sections 401 and 435. In Section 401, * * * [the term 'personal injury’ is defined to] 'include a disease or disability’. Section 435 provides for apportionment among prior employers only for 'disease’. Notwithstanding the medical term 'degenerative disc disease’, occupationally-weakened backs could more appropriately be described by the term 'disability’ than by the term 'disease’ as the latter word is treated in common usage, and thus be excluded from the provisions of Section 435.”
Defendant Eureka appealed the board’s decision to the Court of Appeals. That Court reversed the board and remanded the case for reinstatement of the referee’s original order apportioning liability. 79 Mich App 750; 263 NW2d 30 (1977). In its opinion, the Court first explained the purpose of the apportionment provision:
"Apportionment of financial liability for an employee’s disease-caused disability is designed to reflect the relative contribution of similar employment conditions at each employer to the occurrence of the disability. In other words, the fortuitous event of a disability, which is but the culmination of a prolonged exposure of the employee to deleterious employment conditions at multiple employers, should not result in the imposition of a financial burden only upon the last in the series of employers.” Id., 754.
The Court then interpreted the term "disease” in § 435 in light of this purpose:
"A disease is present for purposes of the apportionment statute whenever the evidence establishes that the compensable disability derives from the effects of continued and protracted exposure to the inherent elements of the employee’s employment.”
Finally, the Court compared the factual findings of the appeal board to this interpretation and concluded that the plaintiffs back condition did constitute a disease for purposes of § 435.
Defendant Hosking has now appealed the Court of Appeals decision to this Court.
II
The appeal board’s findings of fact are conclusive in the absence of fraud. MCL 418.861; MSA 17.237(861). Thus, we are bound to accept the WCAB’s factual finding (which has support in the record) that the plaintiffs back condition was not the result of the incident he suffered at Eureka in December of 1973 or the result of that incident plus subsequent aggravation at Eureka, but was instead the result of his heavy lifting duties for both employers.
The legal issue generated by this finding of fact is whether a medically recognized back disease caused by repeated duties in the normal course of an employee’s daily routine constitutes a "disease” within the meaning of § 435.
Ill
The appeal board does not have any authority to alter or modify a provision of the Worker’s Disability Compensation Act, by interpretation or otherwise, in order to square that provision with the board’s perception of good public policy. That is solely the Legislature’s prerogative.
The language used by the Legislature in § 435 is clear and straightforward. It requires an apportionment of liability according to the length of time the employee has worked for each employer "in the employment to the nature of which the disease was due and in which it was contracted”. Thus, the employee must be suffering from a "disease” which is "due” to the "nature” of his or her employment in order for the statute to apply.
The plaintiffs back condition falls within the ordinary meaning of the language used by the •Legislature in § 435. The American Heritage Dictionary of the English Language, New College Edition (1975), defines the word "disease” as:
"An abnormal condition of an organism or part, especially as a consequence of infection, inherent weakness, or environmental stress, that impairs normal physiological functioning.”
Other dictionaries contain a similar definition. The plaintiffs condition is certainly "abnormal”, it was found to be a "consequence of * * * environmental stress” and it "impairs” his "normal physiological functioning”. In addition, the condition is considered a disease — "degenerative disc disease” —by the medical profession. And the appeal board found it was caused by the nature of his employment at both employers — his "heavy lifting duties”.
The board would have us reject the ordinary meaning of the words used by the Legislature in § 435 by reference to § 401(c) of the act which states:
"Whenever used in this act:
"(c) 'Personal injury’ shall include a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer * * *.” (Emphasis added.)
The board argues that because § 435 only authorizes apportionment for a "disease” and not for a "disease or disability”, apportionment was not meant to apply to a "disability”. Furthermore, the board urges that because the plaintiffs back condition could be described by the term "disability” rather than by the term "disease”, there should be no apportionment in this case. Ergo, if the policy argument should fail, we could simply give the disease another name.
This argument by the board is not a conclusive finding of fact that the plaintiffs back condition is a "disability” and not a "disease”. To the contrary, the argument is couched in a legal conclusion as to the meaning of the words used by the Legislature in §§ 401(c) and 435, thus bringing it within the proper scope of judicial review.
IV
The first flaw in the board’s legal argument is that it does not appear from a reading of the act that the Legislature, by using the phrase "disease or disability” in § 401(c), intended thereby to create two distinct classes of personal injuries. Section 401(a) defines the term "disability” in a manner at odds with the meaning which the board urges us to adopt. That section states:
"Whenever used in this act:
"(a) 'Disability’ means the state of being disabled from earning full wages at the work in which the employee was last subject to the conditions resulting in disability. ” (Emphasis added.)
As so defined, the term "disability” represents a shorthand expression for the end result of a personal injury. It does not connote a class of personal injuries distinct from diseases. Many sections of the act, including § 435 itself, use the term "disability” in the same sense as defined by the Legislature in § 401(a).
Despite the Legislature’s express definition of the term "disability” in § 401(a), the board would have us infer that the Legislature additionally intended that this term should designate a class of personal injuries distinct from diseases.
If we accepted this interpretation and the board’s conclusion that the plaintiff’s back condition could more appropriately be described by the term "disability” than by the term "disease”, no benefits could be awarded in this case. Based on its factual findings, the board properly concluded that Chapter Four and not Chapter Three controlled. Section 415 of Chapter Four, which delineates the circumstances under which benefits can be awarded, only authorizes the payment of benefits when the claimant’s condition is "caused by a disease”. The phrase "disease or disability” is not used. Thus, under the board’s interpretation, § 415 would not apply to a "disability”.
I do not believe that the Legislature intended such a result. Nor do I believe that in addition to the express definition of the term "disability” in § 401(a), the Legislature also intended that this term should have some other meaning when used in another section.
Assuming arguendo that the Legislature did intend to distinguish between a "disease” and a "disability” for purposes of apportionment under § 435, the board is also incorrect in its conclusion that the plaintiff’s back condition could more appropriately be described by the term "disability” than by the term "disease” as the latter word is treated in common usage.
As noted above, the dictionary meaning of the word "disease” includes abnormal physiological conditions such as that suffered by the plaintiff and caused (the board found) by environmental stress. Also, both of the medical experts who examined the plaintiff diagnosed his condition as "degenerative disc disease” — in lay terms, "a worn-out disc”. The board found that this condition was the result of the plaintiff’s heavy lifting duties at both employers. Those duties required the plaintiff to lift hundreds of thousands of tires each year for ten successive years. Professor Larson, speaking about "occupational diseases” in his treatise on workers’ compensation law, states that "repeated strains associated with the employment may supply the distinctive element necessary to make a back injury occupational”.
These factors in toto are too clear to permit obfuscation in order to avoid Eureka’s claim under §435.
V
This conclusion is consistent with a long series of cases in which this Court, in the course of interpreting other sections of the act, has treated back conditions caused by repeated heavy lifting duties as constituting or possibly constituting occu pational diseases (whether or not degenerative disc disease was involved). See Underwood v National Motor Castings Division, Campbell, Wyant & Cannon Foundry Co, 329 Mich 273; 45 NW2d 286 (1951), Fields v G M Brass & Aluminum Foundry Co, 332 Mich 113; 50 NW2d 738 (1952), Gibbs v Motor Wheel Corp, 333 Mich 617; 53 NW2d 573 (1952), and Braxton v Chevrolet Grey Iron Foundry Division of General Motors Corp, 396 Mich 685; 242 NW2d 420 (1976). It is also consistent with Kalee v Dewey Products Co, 296 Mich 540; 296 NW 826 (1941), in which the plaintiff developed bursitis in her shoulder from repeated twisting motions required as a normal part of her work. This Court affirmed an award of benefits for an occupational disease. A worn-out shoulder is little different from a worn-out back.
Dressier v Grand Rapids Die Casting Corp, 402 Mich 243; 262 NW2d 629 (1978), is inapposite to the case at bar. In Dressier the appeal board factually found that the plaintiff’s back problem was the result of a single-event injury (a fall at work) and subsequent aggravations thereof. On the basis of this finding, the board concludéd that Chapter Three controlled. There was no question about apportionment under § 435. The cases holding that certain back disabilities constituted occupational diseases were distinguished by Justice Williams in Dressier on the grounds that those "cases involve situations where the plaintiff’s back condition arose gradually because of long and repeated bending, twisting, or lifting, even though there might also have been an incidental trauma”. Id. at 257. (Emphasis added.)
In the case at bar, the board rejected the conten tion that the plaintiffs back condition was caused by a single-event injury at Eureka in December of 1973 or by that injury plus subsequent aggravations thereof. Instead, the board found that it was caused by the plaintiffs repetitive heavy lifting duties for both employers. On the basis of this finding, the board properly concluded that Chapter Four controlled. Thus, the fact-facting in Dressier is essentially the opposite of the situation presently before us and the language of the opinion is supportive of this opinion. The cases distinguished by the majority in Dressier are particularly applicable to this case because of the fact-findings by the WCAB.
VI
The appeal board in the case at bar failed even to mention that the purpose of § 435 is to distribute equitably the liability for a disease caused by similar employment conditions among the employers who were responsible for those conditions. We agree with the Court of Appeals that § 435 should be interpreted with this purpose in mind. Indeed, the position advocated by the appeal board and Justice Williams insulates the employer (Hosking) whose operation placed the most stress on plaintiff.
Unfortunately, the board also failed to discuss the very real possibility that if back conditions such as that suffered by the plaintiff were not apportionable, employers can be expected to refuse to hire persons who have worked previously in occupations which require repeated heavy lifting duties.
Although the policy considerations toward the reduction of issues in the crowded WCAB docket are understandable, it is not the function of the judiciary to override legislatively expressed public policy in order to implement its own views.
The drafters of the Worker’s Disability Compensation Act clearly intended that similar multiple employments, through which an occupational disease finally progressed to a compensable disability, should share proportionately in the payment of benefits. In this case, Mr. Derwinski was found by both the referee and the WCAB to have a degenerative disc disease caused by work in the two employments. That finding is conclusive and requires apportionment of liability. It is not appropriate for this Court to excise back diseases from the statute governing occupational diseases for purposes of easier administration.
The argument that employees might have to wait for benefits while carriers appealed the sole question of apportionment is without merit. Even as in this case, in which the employee has been receiving full benefits, the WCAB can fashion an order directing payment to the worker, with the issue of apportionment to continue to an orderly conclusion.
I would therefore adopt the Court of Appeals interpretation of § 435 as it applies to the facts of this case and would affirm the reversal of the appeal board and the remand for reinstatement of the hearing referee’s original order apportioning liability.
Kavanagh, Levin, Fitzgerald, and Ryan, JJ., concurred with Coleman, C.J.
Hearing Referee’s Opinion, p 1.
MCL 418.301 et seq.; MSA 17.237(301) et seq.
Appeal Board Opinion, p 2.
Ibid.
MCL 418.435; MSA 17.237(435).
Appeal Board Opinion, p 3.
Ibid.
See, for example, Webster’s Third New International Dictionary of the English Language, Unabridged (1966 ed), p 648.
It is questionable that the disease is "caused by” rather than "aggravated by” the hard labor but the WCAB fact-finding is final. Degenerative disc disease is not uncommon and is found in those who perform no hard labor — or any labor — as well as in those who perform arduous tasks.
MCL 418.401(c); MSA 17.237(401)(c).
MCL 418.401(a); MSA 17.237(401)(a).
In addition to § 435, see § 415 (MCL 418.415; MSA 17.237[415]), § 431 (MCL 418.431; MSA 17.237[431]), and § 441 (MCL 418.441; MSA 17.237[441]).
MCL 418.415; MSA 17.237(415).
Assuming, as plaintiff testified, that to recap one tire he had to lift it 20 times and that he was required to recap 50 to 60 tires per day during his seven years at Hosking and 20 to 35 tires per day during his three years at Eureka, the average number of lifts per year at Hosking would be 264,000 (20 lifts X 55 tires x 240 working days) and the average at Eureka would be 132,000 (20 lifts X 27.5 tires X 240 working days).
IB Larson, Workmen’s Compensation Law (1979 rev), § 41.33, pp 7-377 — 7-378.
The appeal board’s opinion in Gibbs makes it clear that the plaintiff was awarded benefits for an occupational disease. See 1950-1951 WCABO (Docket No. 11505, July 20, 1951).
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Per Curiam.
The defendant was tried by a judge of the Recorder’s Court of Detroit and was convicted of criminal sexual conduct in the second degree. It was alleged that he had kissed the breast of 11-year-old Malinda Randolph. The question for our review is the propriety of the trial judge’s admission of evidence of allegedly similar acts committed by the defendant on prior occasions.
Malinda Randolph, the complainant, testified that while she was visiting a friend, Paula Cash, the defendant arrived and went into the bathroom. At one point, Paula and the defendant entered the living room to join Malinda. The defendant was "bothering” Paula’s breasts. Paula told the defendant to "bother” Malinda. The defendant responded by lifting Malinda’s shirt and by putting his mouth on her breast. Defendant thereafter left. Two days later Malinda reported this incident to her mother.
Paula, also 11 years old, testified that the incident described by Malinda did not occur. Paula did acknowledge that on the occasion in question the defendant came to her house and used the bathroom.
The defendant denied touching Malinda. He testified that on the day in question Malinda and Paula were comparing their sexual development as to the amount of hair and breast size and that Malinda pulled her skirt up and her pants down to make a comparison with Paula. The defendant told them that "it wasn’t nice” and threatened to inform their mothers about their behavior.
During the course of this trial, the prosecutor, over defense counsel’s objections, was permitted to call as witnesses two girls of about the same age as Paula and Malinda. These girls stated that the defendant had exposed himself to each of them on a prior occasion. In addition, one of the girls stated that the defendant had masturbated in front of her and had touched her chest. The rationale advanced in support of the reception of this evidence was that it was admissible under the "similar acts” statute. MCL 768.27; MSA 28.1050 provides:
"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
The trial judge agreed that the testimony was admissible.
The Court of Appeals, in affirming, concluded that the "similar acts” testimony was properly admitted because it related to the defendant’s "motive and intent”.
We cannot agree with either the trial court or the Court of Appeals. To the extent that the prior acts of the defendant involved sexual improprieties with young girls, it can be said that such acts were similar to the act for which the defendant was being tried. However, such a conclusion does not in itself justify admission of this type of evidence.
The legitimacy of similar acts evidence generally is its tendency either to identify the defendant as the unknown actor in an alleged criminal act or to negate the suggestion, normally advanced by the defendant, that the act in question, although performed by him, was not criminal because it was unintended, accidental, a mistake or otherwise innocent.
The evidential process by which similar acts evidence is properly introduced involves direct proof of three propositions from which a fourth is inferable and thus proved circumstantially. They are:
1) that the manner in which the criminal act in question or some significant aspect of it was performed bore certain distinguishing, peculiar or special characteristics;
2) that certain specific similar acts, performed contemporaneously with or prior to or subsequently to the act in question, bore the same distinguishing, peculiar or special characteristics;
3) that the similar acts were performed by the defendant; and
4) that, accordingly, the crime in question was committed by the defendant.
It is the distinguishing characteristics which constitute the acts as similar within the meaning of MCL 768.27 and MRE 404(b), not the fact that all constitute the same crime or are violative of the same statute. The distinguishing, peculiar or special characteristics which are common to the acts and thus personalize them are said to be the defendant’s "signature” which identifies him as the perpetrator, or, if his identity is not contested, negates the suggestion that his behavior in performing the challenged act was unintended, accidental, a mistake, or otherwise innocent.
However, as a condition precedent to the admission of such evidence under the statute at the time of trial and MRE 404(b) now, it must first be shown as a threshold requirement, that "the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material”. (Emphasis added.)
We are unconvinced that the statutory purposes cited by the Court of Appeals in this case as justifying admission of the similar acts evidence— "to show motive and intent” — were material within the meaning of the statute.
In People v Oliphant, 399 Mich 472, 488-489; 250 NW2d 443 (1976), we quoted the following definition of this concept set forth in McCormick on Evidence (2d ed), § 185, p 434:
" 'In the courtroom the terms relevancy and materiality are often used interchangeably, but materiality in its more precise meaning looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to prove a proposition which is not a matter in issue or probative of a matter in issue, the evidence is properly said to be immaterial. As to what is "in issue”, that is, within the range of the litigated controversy, we look mainly to the pleadings, read in the light of the rules of pleading and controlled by the substantive law.’ ”
And we added:
"Under this definition evidence probative of a matter 'in issue’ is material”.
Similar acts evidence then, must qualify for admissibility on two levels: 1) It must be probative of one or more of the statutorily specified purposes, and 2) one or more of those purposes must be material, that is, a proposition "in issue” in the case.
Except to the extent that proof of all criminal acts requires proof of wrongful purpose or mens rea, the defendant’s motive or intent were not material in this case in the sense of being propositions separately in issue. The defendant made no claim, for example, that he kissed Malinda Randolph unintentionally or with some innocent intent or purpose nor did he claim he did so out of any justifiable motive. Had he made such claims in defense or explanation of the behavior attributed to him, he would have placed his intent or motive in issue and thus constituted them propositions material to the case in the sense that term is used in the statute. Had that been the situation, evidence of the prior sexual acts may have been admissible as tending to show that since he performed similar acts of sexual degeneracy on small girls on earlier occasions, his claim that his intent and motive were innocent in this case is unlikely to be true.
Evidence of the prior sexual acts in this case, however, not only was without probative value in proving the defendant’s motive or intent, thus failing at the first threshold of admissibility, but motive or intent were not material in the sense that they were not propositions in issue, within the meaning of the statute in question. Evidence of the prior acts simply tends to show that the defen dant had misbehaved sexually in the past. Since the evidence failed to pass muster both as to relevancy and materiality, it was admitted in error.
We are not disposed, on this record, to conclude that the error was harmless. The case essentially was one which turned upon an assessment of credibility. The complainant testified that the sexual misconduct took place. The defendant denied it and was supported in his denial by the testimony of Paula Cash. Given the evidence, we are unable to conclude that the error in admitting the similar acts evidence was not prejudicial.
Accordingly, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the defendant’s conviction and remand the case to the Recorder’s Court for a new trial.
Coleman, C.J., and Kavanagh, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
MCL 750.520c(1)(a); MSA 28.788(3)(1)(a).
Paula had lived with Major and his wife while waiting for her parents to come up from the South. The Majors lived down the street from the Cashes. Major stopped in at the Cashes’ often to visit with Paula and her family.
See, also, MRE 404(b) adopted March 1, 1978, which now supersedes MCL 768.27; MSA 28.1050:
"Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged.”
The distinctiveness of the special characteristics with which the act was performed becomes fully evident, of course, only when all four steps in the proof process are completed.
We do not mean by this example to imply that this is the only fashion in which “motive” might be material in a case such as this. Motive might become material in a case in which the criminal actor’s identity is controverted or in other ways. | [
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Blair Moody, Jr., J.
On October 10, 1974, a team of Detroit police officers was dispatched to execute a warrant to search premises located at 9356 Mansfield. The warrant was issued to search the premises and seize heroin and any other narcotics materials and paraphernalia, but did not specify persons to be searched. The owner of the premises was not named in the search warrant. The only reference to a particular person was a statement contained in the warrant indicating that the informant had previously purchased heroin at the Mansfield address from a black male known as "George”.
Upon arriving at the named address, Officer Roger Lehman saw the defendant go out the front door of the house and proceed across the porch and down the steps. When defendant was asked to open the door he replied that he could not because he left his keys inside, but he could ring someone over the intercom. Dwight Calhoun came to the door, but did not admit the police officers. As a result, the officers obtained entrance to the premises by forcing open the front door. Once admittance had been gained Officer Lehman instructed Officer Conant, previously stationed along the side of the house, to bring the defendant, still on the porch, into the house.
After the eight occupants of the house were detained, a search of the premises revealed two plastic bags of suspected narcotics under the bar in the basement. After finding the suspected narcotics in the basement and upon determining that the defendant was the owner of the house, Officer Conant formally arrested the defendant for violation of the Controlled Substances Act of 1971. MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). A custodial search conducted by Officer Conant revealed a plastic bag containing suspected heroin in the defendant’s jacket pocket. It is this heroin, discovered on the person of the defendant, that forms the basis of the instant possession charge.
Following a preliminary examination, defendant was bound over for trial. On November 19, 1974, the trial court granted a motion to suppress the evidence and quashed the information. Subsequently, the Court of Appeals affirmed the trial court. 68 Mich App 571; 243 NW2d 689 (1976). We granted leave to appeal on February 8, 1977. 399 Mich 828 (1977).
The dispositive issue presented for resolution is whether the police officers had probable cause to arrest the defendant without a warrant when defendant was seized and detained while leaving his home prior to execution of the premises search warrant.
Statutory authority for an officer to arrest without warrant is set forth in MCL 764.15; MSA 28.874, which provides in relevant part:
"Any peace officer may, without a warrant, arrest a person—
"(d) When he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it.”
Probable cause for an arrest has been defined as any facts which would induce a fair-minded person of average intelligence and judgment to believe that the suspected person has committed a felony. People v Ward, 226 Mich 45; 196 NW 971 (1924). Furthermore, the facts upon which such belief is based must be present at the moment of arrest. People v Stewart, 232 Mich 670; 206 NW 337 (1925).
Therefore, in reviewing a claim that a police officer lacked probable cause to arrest, the reviewing court must determine whether facts available to the officer at the moment of arrest would justify a fair-minded person of average intelligence in believing that the suspected person had committed a felony. Each case must be analyzed in light of the particular facts confronting the arresting officer. People v Harper, 365 Mich 494; 113 NW2d 808 (1962).
According to the facts, defendant had left the premises before the search party arrived and was proceeding down the front porch steps when approached by Officer Lehman. At that point in time, Officer Lehman detained the defendant for purposes of limited inquiry and ascertained that the defendant lived at the named premises. There is no evidence that a frisk of the defendant was made. Defendant’s behavior pursuant to the police officer’s request for admittance to the premises can be categorized only as cooperative.
However, the testimony of Officer Conant at the preliminary examination indicates that the defendant was not free to leave the front porch as the premises search warrant was being executed, but was instead escorted into his house and deprived of his liberty. At that time the initial inquiry and cooperative response terminated. This further detention of the defendant, by bringing him into the house, was a "seizure” as defined by the United States Supreme Court:
"Obviously, not all personal intercourse between policemen and citizens involves 'seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure’ has occurred.” Terry v Ohio, 392 US 1, 19, fn 16; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
We conclude that the seizure of defendant, unsupported by probable cause, was violative of the Fourth Amendment.
The standard for determining whether a police officer’s seizure-detention of a citizen violates the Fourth Amendment is clearly set forth by the United States Supreme Court in the recent decision of Dunaway v New York, 442 US 200; 99 S Ct 2248; 60 L Ed 2d 824 (1979). Justice Brennan’s majority opinion holds that detention of a citizen beyond the narrow scope of Terry v Ohio, supra, and its progeny, is reasonable only if supported by probable cause for arrest. Thus, the general standard for determining whether a seizure-detention is legal is not whether the police officer’s actions were reasonable under the circumstances but rather whether the police officer had probable cause to arrest.
In Dunaway, the Court explained that prior to the Terry decision arrests were equated with seizures requiring probable cause to justify the intrusion under the Fourth Amendment:
"Before Terry v Ohio, 392 US 1 (1968), the Fourth Amendment’s guarantee against unreasonable seizures of persons was analyzed in terms of arrest, probable cause for arrest, and warrants based on such probable cause. The basic principles were relatively simple and straightforward: The term 'arrest’ was synonymous with those seizures governed by the Fourth Amendment. While warrants were not required in all circumstances, the requirement of probable cause, as elaborated in numerous precedents, was treated as absolute. The 'long-prevailing standards’ of probable cause embodied 'the best compromise that has been found for accommodating [the] often opposing interests’ in 'safeguarding] citizens from rash and unreasonable interferences with privacy’ and in 'seek[ing] to give fair leeway for enforcing the law in the community’s protection’. Brinegar v United States, 338 US 160, 176 [69 S Ct 1302; 93 L Ed 1879] (1949). The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest 'reasonable’ under the Fourth Amendment. The standard applied to all arrests, without the need to 'balance’ the interests and circumstances involved in particular situations.” (Footnotes omitted.) Dunaway, pp 207-208.
The exception to this general rule was carefully carved out in the Terry opinion:
’’Terry for the first time recognized an exception to the requirement that Fourth Amendment seizures of persons must be based on probable cause. That case involved a brief, on-the-spot stop on the street and a frisk for weapons, a situation that did not fit comfortably within the traditional concept of an 'arrest’. * * * [T]he Court established 'a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime’. * * * Terry departed from traditional Fourth Amendment analysis in two respects. First, it defined a special category of Fourth Amendment 'seizures’ so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment 'seizures’ reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons.” (Footnotes omitted.) Dunaway, pp 208-210.
The Dunaway Court clearly indicated its intent to maintain the narrow scope of Terry. The Court expressly reaffirmed the essential viability of the probable cause standard and specifically refused to expansively apply the Terry balancing test:
''In effect, respondent urges us to adopt a multifactor balancing test of 'reasonable police conduct under the circumstances’ to cover all seizures that do not amount to technical arrests. But the protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when the balancing may be done in the first instance by police officers engaged in the 'often competitive enterprise of ferreting out crime’. Johnson v United States, 333 US 10, 14 [68 S Ct 367; 92 L Ed 436] (1948). A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront. Indeed, our recognition of these dangers, and our consequent reluctance to depart from the proved protections afforded by the general rule, are reflected in the narrow limitations emphasized in the cases employing the balancing test. For all but those narrowly defined intrusions, the requisite 'balancing’ has been performed in centuries of precedent and is embodied in the principle that seizures are 'reasonable’ only if supported by probable cause.” (Footnotes omitted.) Dunaway, pp 213-214.
In describing the nature of the narrow intrusions sanctioned under a Terry test, the Court stressed that a permissible intrusion is restricted to brief questioning regarding suspicious activity and to limited weapons frisks necessary to insure safety:
"Because Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope. Terry itself involved a limited, on-the-street frisk for weapons. Two subsequent cases which applied Terry also involved limited weapons frisks. See Adams v Williams, 407 US 143 [92 S Ct 1921; 32 L Ed 2d 612] (1972) (frisk for weapons on basis of reasonable suspicion); Pennsylvania v Mimms, 434 US 106 [98 S Ct 330; 54 L Ed 2d 331] (1977) (order to get out of car is permissible 'de minimis’ intrusion after car is lawfully detained for traffic violations; frisk for weapons justified after 'bulge’ observed in jacket). United States v Brignoni-Ponce, 422 US 873 [95 S Ct 2574; 45 L Ed 2d 607] (1975), applied Terry in the special context of roving border patrols stopping automobiles to check for illegal immigrants. The investigative stops usually consumed less than a minute and involved ‘a brief question or two’. 422 US, at 880. The Court stated that '[b]ecause of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest’. Ibid. See also United States v Martinez-Fuerte, 428 US 543 [96 S Ct 3074; 49 L Ed 2d 1116] (1976) (fixed checkpoint to stop and check vehicles for aliens); Delaware v Prouse, 440 US 648 [99 S Ct 1391; 59 L Ed 2d 660] (1979) (random checks for drivers’ licenses and proper vehicle registration not permitted on less than articulable reasonable suspicion).
"Indeed, Brignoni-Ponce expressly refused to extend Terry in the manner respondent now urges. The Court there stated: 'The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to. explain suspicious circumstances, but any further detention or search must be based on consent or probable cause’. 422 US, at 881-882. * * * Accord, United States v Martinez-Fuerte, supra, at 567.” (Footnotes omitted.) (Emphasis changed.) Dunaway, pp 210-212.
Applying Dunaway to the specific facts of this case, the seizure of defendant on the porch and his subsequent detention were not, by nature, limited intrusions permissible under Terry and subsequent cases. Clearly these facts do not involve the special context of border patrol interrogations or traffic infractions. The defendant was stopped and questioned in front of his home. He answered the inquiries and attempted to assist the officers to gain entrance to the premises. The defendant’s conduct at no time gave a basis for the officers to suspect unlawful activity on his part or to fear for their safety. Indeed, the officers chose not to frisk the defendant. This initial stop and brief questioning was completed. At that point, the officers had exhausted any Terry basis to further restrain the defendant.
When the defendant’s liberty was thereafter restrained, the police officers must have had probable cause to arrest the defendant to render the seizure-detention reasonable under the Fourth Amendment. To sanction a further detaining of defendant without probable cause would in effect replace the fundamental and essential probable cause standard with a multifactor balancing test specifically rejected by the United States Supreme Court in Dunaway.
Although not formally arrested until after the suspected heroin was discovered in the basement, the defendant was for all practical purposes arrested without a warrant when he was "seized” on his front porch, at a time when the police officers did not have probable cause to believe that the defendant had committed or was committing a felony. The heroin seized from defendant, constituting the "fruits” of his unlawful arrest, must be excluded. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963). Accordingly, the trial court’s suppression of the evidence in the instant case is affirmed.
Kavanagh, Levin, and Ryan, JJ., concurred with Blair Moody, Jr., J.
Williams, J.
(for reversal). We granted leave to appeal in this case to determine the constitutional validity of a search of defendant and the seizure pursuant thereto of a plastic bag of heroin from defendant’s jacket pocket. The ultimate permissibility of this search and seizure, however, rests in turn on whether two prior "seizures” of defendant’s person were constitutional: (1) the police bringing defendant, who had just left his house, from his outdoor porch into his house and his detention therein while a valid premises search warrant for heroin and any other narcotic materials and paraphernalia was executed, and (2) the formal arrest of the defendant, based upon his ownership-occupancy of the premises named in the warrant, following the discovery of suspected narcotics in the basement of his house.
Considered within the totality of circumstances in this case, we find that neither of these prior "seizures” of defendant contravened the general proscription against unreasonable seizures of ei ther the Fourth Amendment to the Federal Constitution, US Const, Am IV, or this state’s Constitution, Const 1963, art 1, § 11. Bringing defendant inside from his porch and then detaining him therein while the premises search warrant was being executed was "reasonable” police action in this case. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Defendant’s arrest inside after suspected narcotics were found in his basement pursuant to the search warrant was valid because it was based on probable cause. Accordingly, we hold that the ensuing seizure of the heroin from defendant’s person was constitutionally permissible as the product of an allowable search incident to a valid arrest. See Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969). We therefore reverse the Court of Appeals affirmance of the trial court’s suppression of the heroin seized from defendant’s person and its quashing of the information.
I. Facts
Because the factual setting of a specific search or seizure is usually of paramount importance in determining the constitutional validity of that search or seizure, we take careful pains to delineate the particular circumstances of this case which we feel, viewed in their totality, sanction the police conduct in question.
On the evening of October 10, 1974, a team of Detroit police officers was sent to 9356 Mansfield in the City of Detroit to execute a premises search warrant for heroin and any other narcotic materials and paraphernalia. The warrant was supported by information from an informant who had purchased heroin at this same address just the day before.
Upon arriving at the premises named in the warrant, police officers Lehman and Conant witnessed defendant leave the premises to be searched through the front door and proceed down the front porch steps. At this point Officer Lehman approached defendant, identified himself as a police officer, and asked defendant if he lived in the house he had just exited. Upon defendant’s affirmative response, Officer Lehman showed the search warrant to him and told him to open up the house if he could. Defendant, since he had left his keys inside, cooperated with this request by using the intercom to summon someone inside the house to open the door.
Dwight Calhoun opened the inner door to the house in response to defendant’s request. Officer Lehman then identified himself as a police officer and told Calhoun to open the door. Calhoun did not comply with this direction, so Officer Lehman attempted to open the storm door only to discover that it was locked. At that time, Calhoun slammed the inner door shut in Officer Lehman’s face. Thereupon Officer Lehman instructed three other officers who were present to break down the door. Once admittance had been gained, Officer Lehman instructed Officer Conant, previously stationed along the side of the house, to bring defendant, still on the porch, into the house.
In order to secure the premises prior to the search, defendant and the other persons in the house were taken into the living room by the police officers and were detained there while the search was conducted.
In the course of the search, two plastic bags containing suspected narcotics were found in the basement. Thereafter, defendant, who was by then known to be the owner of the house, was arrested. A custodial search following this arrest revealed a plastic bag containing suspected narcotics in defendant’s jacket pocket. It is these narcotics, later determined to be heroin, which form the basis for the instant charge of violation of the Controlled Substances Act of 1971. MCL 335.341(4)(a); MSA 18.1070(41)(4)(a).
Following a preliminary examination, defendant was bound over for trial. However, on November 19, 1974, the trial court granted defendant’s motion to quash the information because it held the heroin to have been improperly seized from defendant. This finding was predicated upon both the trial court’s belief that no probable cause existed to arrest defendant and the fact that defendant was not present in the house voluntarily.
The Court of Appeals affirmed the trial court for basically the same reasons. 68 Mich App 571; 243 NW2d 689 (1976).
We granted leave to appeal on February 8, 1977. 399 Mich 828 (1977).
II. Dunaway and Terry
There can be no question that the police "seized” defendant when they required him to go back inside his house and remain there during the execution of the legal search warrant. Terry, supra, 19, fn 16. Such a determination, however, far from ends our inquiry into the constitutional per missibility of the police action in question. The United States Supreme Court has taught us that " '[sjearch’ and 'seizure’ are not talismans”. Terry, supra, 19. Thus just as the Court in Terry was quick to reject the notion that the Fourth Amendment does not come into play at all as a limitation upon police conduct just because an officer may stop short of something called a "technical arrest”, id., 19, so must we be wary of erring in the reverse manner by uncritically labeling a "seizure” an "arrest” and then characterizing it as "illegal” since it was made without probable cause. Rather, we must ask whether this "seizure” of defendant, under the circumstances of this case, was violative of the state and Federal constitutional proscriptions against unreasonable seizures.
Because we recognize that the police did not have probable cause to arrest defendant at the time they encountered him on his porch, his "seizure” there is valid only if it comes within the rule of Terry, supra, and its progeny. That rule, of course, permits certain "seizures” or "detentions” as "reasonable” under the constitutional prohibitions against "unreasonable searches and seizures”, on facts that do not constitute probable cause to arrest. However, in order to properly understand the scope of the rule of Terry and its progeny, consideration must be given to the recent United States Supreme Court decision of Dunaway v New York, 442 US 200; 99 S Ct 2248; 60 L Ed 2d 824 (1979), which both recognizes the validity and indicates the limits of the Terry- and-progeny rule. In Dunaway the Court stated:
"Thus, Terry departed from traditional Fourth Amendment analysis in two respects. First, it defined a special category of Fourth Amendment 'seizures’ so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment 'seizures’ reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons.” Dunaway, supra, 209-210.
While Terry itself was a pat-down-for-weapons case, as was Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972), others of the progeny are not. For example, Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977), held a police order that a driver get out of his automobile a "de minimis” and reasonable intrusion after the car was lawfully detained for a traffic violation; United States v Brignoni-Ponce, 422 US 873; 95 S Ct 2574; 45 L Ed 2d 607 (1975), allowed roving border patrols to make investigative stops of automobiles to check for illegal immigrants on less than probable cause, i.e., on reasonable suspicion that a particular vehicle may contain aliens who are illegally in the country; United States v Martinez-Fuerte, 428 US 543; 96 S Ct 3074; 49 L Ed 2d 1116 (1976), approved of fixed checkpoints to stop and check vehicles for aliens in the absence of any individualized suspicion. Indeed, Justice White’s concurring opinion in Dunaway recognizes the wider application of Terry and its progeny as follows:
"The opinion of the Court might be read to indicate that Terry v Ohio, 392 US 1 (1968), is an almost unique exception to a hard-and-fast standard of probable cause. As our prior cases hold, however, the key principle of the Fourth Amendment is reasonableness — the balancing of competing interests. E.g., Delaware v Prouse, 440 US 648, 653-654 [99 S Ct 1391; 59 L Ed 2d 660] (1979); Michigan v Tyler, 436 US 499, 506 [98 S Ct 1942; 56 L Ed 2d 486] (1978); Marshall v Barlow’s, Inc, 436 US 307, 321-322 [98 S Ct 1816; 56 L Ed 2d 305] (1978); United States v Martinez-Fuerte, 428 US 543, 555 (1976); United States v Brignoni-Ponce, 422 US 873, 878 (1975); Terry v Ohio, supra, at 20-21; Camera v Municipal Court of San Francisco, 387 US 523, 536-537 [87 S Ct 1727; 18 L Ed 2d 930] (1967).” Dunaway, supra, 219.
Close analysis of Dunaway and Terry and progeny suggests that basically there are four criteria to be considered in balancing to determine reasonableness:
First, was the police action taken in an atmosphere requiring rapid reaction to the exigencies encountered in the field such as the on-the-spot decision to stop and frisk suspicious individuals "casing” a store in Terry, or was the police action the result of a deliberate, planned decision such as the order to follow up an informant’s lead by going out to "pick up” a person and "bring him in” for interrogation in Dunaway?
Second, was the police officer’s belief in the necessity for action to protect the public peace and safety justified at its inception as where, for example, the careful surveillance by an experienced officer of the store "casings” in Terry warranted the officer in believing the individuals might be contemplating a daylight robbery which it would be reasonable to assume would be likely to involve the use of weapons?
Third, was the "intrusion” on the individual’s privacy by the police reasonably related in scope to the circumstances which justified the interference in the first place? In Terry the "intrusion” was limited to a pat-down for weapons during the investigation of suspicious behavior where the offi cer had reason to believe that he was dealing with armed and dangerous individuals; in Mimms, there was only a request to get out of a car following a lawful detention for a traffic violation; in Brignoni-Ponce the Court stated that a reasonable suspicion that a certain car contained illegal aliens would allow the officer to stop the car briefly and question the driver and passengers about their citizenship and immigration status, and ask them to explain suspicious circumstances; in Martinez-Fuerte there was merely a fixed checkpoint stop requiring a vehicle’s occupants to respond to a brief question or two and perhaps produce a document evidencing a right to be in the United States. Visual inspection of the vehicle was limited to what could be seen without a search; in Dunaway, on the other hand, the intrusion was severe. Not only was the defendant "picked up” in a neighbor’s home, but he was subjected to custodial interrogation on the basis of mere reasonable suspicion.
Fourth, was the "seizure” reasonable in order to protect the officer’s safety? This criterion was stressed in Terry— "the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. * * * American crimi nals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded”, Terry, supra, 23 — and in Minims— "We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty.” Mimms, supra, 110.
In justifying a particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, meet these four criteria of "reasonableness”. These facts, in turn, are to be subjected to the neutral scrutiny of a judge who must evaluate the "reasonableness” of a particular search or seizure in light of the particular circumstances. In making this assessment it is "imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief that the action taken was appropriate?” Terry, supra, 21-22. In applying these principles to the instant case we are acutely aware of the fact that, as one court put it,
"Whether an officer’s conduct was 'reasonable’ or 'appropriate’ depends on the facts and circumstances of the particular case, so that the decision in one case seldom furnishes a pat answer in another case. A principle to be applied generally however is that in judging the reasonableness of the actions of the officer the circumstances before him are not to be dissected and viewed singly; rather they must be considered as a whole. So considered they are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.” United States v Hall, 174 US App DC 13, 15; 525 F2d 857, 859 (1976) (citations omitted).
III. Application of Criteria to Instant Case
A. Defendant’s Transfer Inside From Porch
The action taken by the police in bringing defendant inside his house from the porch was a rapid, in-the-field reaction to the perceived necessities of the situation and thus satisfies the first of the four criteria. Confronted with the possibility that an admitted inhabitant of a house where trafficking in drugs was allegedly conducted might escape to summon aid or himself interfere with the execution of the warrant, Officer Lehman made a quick, on-the-spot decision that the safety of the officers could be best protected by bringing defendant inside and keeping him under surveillance with the rest of the occupants of the house. The urgent and unanticipated circumstances surrounding the police action in the instant case bear not even the slightest resemblance to the deliberate decision to pick up the defendant in Dunaway and bring him down to the station house for interrogation. Rather, the decision to "seize” the defendant in the case at bar was made under necessitous circumstances akin to those in Terry.
As regards the second criterion — the officers’ belief in the necessity for action to protect the public peace and safety — we believe the situation, when viewed as a whole, justified a "reasonable and cautious police officer” in taking the action which Officers Lehman and Conant took. They were possessed of a search warrant indicating that the premises they were about to search had been a place of drug traffic only one day earlier. The door abruptly slammed in the officer’s face when he identified himself as a police officer reasonably confirmed the likelihood that illegal activities were being carried on in the premises. Furthermore, there was a reasonable nexus between defendant and the premises. Defendant had just left the house, had admitted he lived there, and his communication with those inside indicated a recognized relationship. The need for prudent and comprehensive action inherent in the fact that the main object of the search warrant was heroin, a white powder which can be easily secreted or destroyed, see State v Johnson, 102 RI 344, 354; 230 A2d 831, 836 (1967), justified not allowing defendant to run loose. Further, we recognize the fact that armed violence not infrequently accompanies the use of or traffic in narcotics — a fact well-known to the police. Cf., People v Nefzger, 173 Colo 199, 200-201; 476 P2d 995, 996 (1970).
Accordingly, we find the police belief in the necessity of action to have been justified at its inception. Like the police decision in Terry to seize an individual and pat his clothing down for weapons, we cannot say that the police decision to bring defendant inside "was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment * * Terry, supra, 28.
As for the third criterion, we believe that the scope of the intrusion of the officials under these circumstances was reasonable. Merely requiring defendant to cross his own threshold while the warrant was being executed was a narrow intrusion designed to ensure the officers’ safety. It did not go beyond the kind of intrusion justified by the attendant safety concerns. Just as the officer in Mimms, supra, could constitutionally require an individual, based on general safety concerns, to get out of his car after a lawful stop even in the total absence of any articulable suspicion to suspect foul play from the particular driver at the time of the stop, a fortiori, we believe it was permissible for the police to require the defendant to enter his own house while the officers executed a valid search warrant in the face of numerous objective, observable facts to support a reasonable concern for their safety. A law enforcement officer, when engaged in the performance of his or her duties, must act on a quick appraisal of the facts before him or her without the benefit of the hindsight which is usually possessed by those reviewing such actions. Sitting within the safe confines of our chambers, we decline to hold the police action in this case unwarranted. See People v Crawl, 401 Mich 1, 14; 257 NW2d 86 (1977) (opinion of Chief Justice, then Justice, Coleman). On balance then, we find the important state interest in the officers’ safety to outweigh this relatively minor intrusion into defendant’s personal liberty.
Finally, we believe the fourth criterion to have been met. We think it beyond peradventure that the police in the instant case could have reasonably feared for their safety had they allowed defendant to remain at large outside the house while they were occupied within with the search warrant’s execution. We must remember that Officer Lehman knew the defendant to be an occupant of this house in which the presence of narcotics was suspected and into which the police were required to force entry. Officer Lehman also knew that defendant was aware, at a minimum, that the police had come to his residence in search of something, since Officer Lehman testified that he had shown the search warrant to the defendant. The person of reasonable caution could hardly be considered timorous in believing such a situation possesses violent potentialities. Such a person, un der these circumstances, might quite logically fear for his or her own safety in executing a premises search warrant if that person knows that the individual permitted to move about freely outside the premises is aware that the object of the search, if found, could quite possibly be incriminating. The untended individual might alone or with summoned aid harm the police either while inside or on leaving. As the Court in Terry states:
"a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime.”
"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, supra, 26-27.
In sum, the four criteria having been satisfied, we find defendant’s transfer to inside his house to have been "reasonable” and therefore constitutionally permissible.
B. Defendant’s Detention Inside
Having found it "reasonable” in this case to bring defendant back across his threshold, we must next determine whether it was reasonable to keep him there. Although there is no Michigan case which specifically addresses the question of whether it is lawful for police officers to detain all persons found on certain premises during the execution of a search warrant for those premises, other courts have held such a detention legitimate. These courts reason that if individuals are left free to roam about the premises while the warrant is being executed, they could well destroy or carry off objects of the search. City of Olympia v Culp, 136 Wash 374, 377; 240 P 360, 361 (1925); State v Ryan, 163 Wash 496, 502; 1 P2d 893, 896 (1931); State v Valdez, 91 NM 567, 568-569; 577 P2d 465, 467 (Ct App, 1978). We agree. Indeed, the Federal First Circuit treated a challenge to such detention as "clearly frivolous” when it said,
"While appellant also contends that the search warrant [for the premises of his office] did not permit government agents to forcibly detain him, and that the restraint thereby imposed upon him prior to his actual arrest invalidated the warrant, we find these latter claims clearly frivolous.” United States v Micheli, 487 F2d 429, 430 (CA 1, 1973).
We also note that the safety rationale which justified bringing defendant inside his house in the first place would understandably continue to apply to his detention and surveillance once inside.
IV. Probable Cause to Arrest Defendant
With respect to the instant case, a police officer generally has probable cause to arrest, without a warrant, the known and present owner-occupant of premises wherein suspected narcotics are discovered pursuant to a valid premises search warrant. Probable cause to believe that a particular person has committed a particular offense is not the equivalent of guilt beyond a reasonable doubt. Thus the Court of Appeals reliance on People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972), in finding that there was an insufficient nexus between the instant defendant and the narcotics seized in his house to provide probable cause for arrest, was misplaced. Davenport dealt with the insufficiency of mere joint occupancy of a house to convict one of four occupants of knowingly possessing narcotics found in the basement of the house, and not with probable cause to arrest. Thus the "seizure” of defendant — his formal arrest — inside his own house following the discovery of suspected narcotics in his basement (defendant having admitted that he owned the house) was constitutionally valid because it was based on probable cause.
V. Conclusion
Since we have found the "seizures” of defendant to be constitutionally permissible because they were "reasonable” under the circumstances of this case, the trial court erred in granting defendant’s motion to quash the information and in suppressing the heroin found on defendant. Accordingly, we reverse the Court of Appeals affirmance of the trial court’s ruling and remand the case to the trial court for further proceedings not inconsistent with this opinion.
Coleman, C.J., and Fitzgerald, J., concurred with Williams, J.
”Q. [Mr. Mitchell, defense counsel]: All right. Well when you came around to the front of the house you did see — you did see Mr. Summers, is that right?
"A. [Officer Conant]: I did.
"Q. And Mr. Summers was outside of the house, is that right?
"A He was.
"Q. Now Mr. Summers was outside of the house, and you took him back in the house, is that right?
'A I did.
”Q. Now he wasn’t a member of your crew, was he?
"A. No, he was not.
”Q. You didn’t see anybody. Did you ever lift him up and bring him back up on the porch as he was knocked down?
"A. No, I did not. After we gained entry Patrolman Lehman told me to bring him on inside.
"Q. All right. You took him on inside?
"A. I did.
"Q. Now when you went inside, what did you do immediately after you got inside?
"A. Well I was in the living room with Mr. Summers.
"Q. All right. You kept Brother Summers right close to you, is that right?
"A. He was there.
"Q. All right. What did you do after you kept him in your close view like that; did you ever go anyplace else in the house?
"A. Not until after the house was secured, then I went to the basement.”
Most recently, in a case subsequent to Dunaway, the United States Supreme Court again steadfastly refused to broaden the scope of an intrusion permissible under Terry. Ybarra v Illinois, — US —; 100 S Ct 338; 62 L Ed 2d 238 (1979). The primary issue presented for resolution in Ybarra was whether the search of a person who was present in a tavern during the execution of a search of the premises was justified under the Terry test as a frisk or was supported by probable cause. The Court reiterated that the Terry exception should be applied in the limited circumstances of a frisk for weapons by an officer who has reason to believe the individual confronted is "armed and presently dangerous”.
In Ybarra v Illnois, — US —; 100 S Ct 338, 62 L Ed 2d 238 (1979), the Supreme Court stressed that when determining whether probable cause existed to search or seize a person, the focus of the inquiry is upon the activities of the individual confronted:
"Not only was probable cause to search Ybarra absent at the time the warrant was issued; it was still absent when the police executed the warrant. Upon entering the tavern, the police did not recognize Ybarra and had no reason to believe that he had committed, was committing or was about to commit any oifense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale.
"It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed. But, a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v New York, 392 US 40, 62-63 [88 S Ct 1889; 20 L Ed 2d 917 (1968)]. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the 'legitimate expectations of privacy’ of persons, not places. See Rakas v Illinois, 439 US 128, 138-143, 148-149 [99 S Ct 421; 58 L Ed 2d 387 (1978)]; Katz v United States, 389 US 347, 351-352 [88 S Ct 507; 19 L Ed 2d 576 (1967)].” (Footnote omitted.) (Emphasis added.)
US Const, Am IV provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Const 1963, art 1, § 11 provides, in pertinent part:
"The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.”
We do not find the police action in confronting defendant as he proceeded down his front porch steps a "seizure”. The police, at this point, were simply seeking voluntary cooperation on defendant’s part in gaining admission to his house. There was no apparent restraint of defendant’s liberty. As the Supreme Court noted in Terry v Ohio, 392 US 1, 19, fn 16; 88 S Ct 1868; 20 L Ed 2d 889 (1968), "Obviously, not all personal intercourse between policemen and citizens involves 'seizures’ of persons”. Indeed, Justice Moody would categorize defendant’s behavior pursuant to the police request for admittance as "cooperative”.
See fn 1 for citation and text.
The Court stressed in both Brignoni-Ponce and Martinez-Fuerte that "any further detention or search must be based on consent or probable cause”. Brignoni-Ponce, supra, 882; Martinez-Fuerte, supra, 567.
By the inclusion of this fourth criterion, we do not mean to imply that the lack of legitimate safety concerns on the part of a police officer will, ipso facto, render the police action "unreasonable” and therefore constitutionally impermissible where probable cause is lacking. In Brignoni-Ponce, supra, for example, it was the governmental concern over illegal immigrants, and not over a police officer’s safety, which the Court found to outweigh the official interference with individual liberty involved in that case.
The preliminary examination did not reveal whether the defendant actually read the search warrant, thus finding out that the object of the search was narcotics, or whether he just knew the officers had the authority to search for something.
There are three reasons to distinguish the instant case from the recent case of Ybarra v Illinois, — US —; 100 S Ct 338; 62 L Ed 2d 238 (1979): first, the existence of specific, articulable facts in the present case, supporting as reasonable, fear on the part of the officers for their safety, whereas the majority in Ybarra said "the State is unable to articulate any specific fact * * Ybarra, supra, slip opinion, p 7; second, the intrusion on the instant defendant’s privacy by requiring him to step over his own threshold was minimal compared with the pat-down and subsequent search in Ybarra; and third, the instant case deals with a private residence from which narcotics had been sold, whereas Ybarra involved a public tavern for the sale of liquor whose bartender reportedly possessed narcotics.
Since there is no evidence that the officers frisked defendant prior to his formal arrest, we have no occasion to consider whether such an action would have been reasonable under the circumstances. Ct. People v Nefzger, 173 Colo 199, 200-201; 476 P2d 995, 996 (1970). | [
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Per Curiam.
Respondent appeals an order of affirmance of the State Bar Grievance Board (hereinafter Board) suspending him from the practice of law for a period of five years. The State Bar Grievance Administrator (hereinafter Administra tor) claims a cross appeal requesting this Court to revoke respondent’s license to practice law ab initio and to strike respondent’s name permanently from the roll of attorneys of this state.
Respondent is not a stranger to this Court. The instant case has its origins in proceedings brought by the Judicial Tenure Commission (hereinafter Commission) against respondent for judicial misconduct in his capacity as Judge of the Detroit Recorder’s Court. See In the Matter of Del Rio, 400 Mich 665; 256 NW2d 727 (1977). A review of those proceedings is necessary to properly frame the instant action.
I
Respondent was licensed to practice law in Michigan on May 23, 1972. On November 3, 1972, he was elected to the office of Judge of the Recorder’s Court for the City of Detroit for a six-year term and took office on January 1, 1973.
On July 30, 1976, the Commission filed its Formal Complaint No. 18 against respondent setting forth an array of charges of judicial misconduct. An amended complaint was filed by the Commission on October 6, 1976, alleging judicial misconduct on the part of respondent relating to the improper return of bond forfeitures. On August 30, 1976, this Court designated Timothy C. Quinn, Judge of the Court of Appeals, as Master to consider Formal Complaint No. 18. The hearing on Formal Complaint No. 18 before the Master commenced on September 28, 1976 and continued through November 10, 1976. Seventy-three witnesses testified (2,400 pages of transcript were taken) and 128 exhibits were introduced into evidence. On January 18, 1977, the Master submitted his report to the Commission. In reviewing his findings on the 25 charges of alleged judicial misconduct contained in Complaint No. 18, as amended, the Master found that nearly all of the allegations contained in the complaint had been amply established. He concluded:
"On this record, I conclude that Judge Del Rio:
"1. Uses his office to benefit friends and acquaintances.
"2. Sentences defendants in violation of MCL 771.14; MSA 28.1144 and Recorder’s Court Rule 29.
"3. In order to accomplish his desire to place a defendant on probation, grants a new trial following a conviction for a non-probationable offense in order to permit a defendant to plead guilty to a probationable offense.
"4. Is not impartial in conducting trials.
"5. Exercises and attempts to exercise personal judicial control over selected cases.
"6. Uses threats of imprisonment or promises of probation to induce pleas of guilty.
"7. Is discourteous and abusive to counsel, litigants, witnesses, court personnel, spectators and news reporters.
"8. Abuses the power of contempt.
"9. Brags of his sexual prowess openly.
"10. Is continually guilty of judicial misconduct that is not only prejudicial to the administration of justice but destroys respect for the office he holds.
"In summary, Judge Del Rio has demonstrated by his conduct that he is legally, temperamentally and morally unfit to hold any judicial position.”
On March 2, 1977, the Commission filed with this Court its opinion affirming the Master’s findings and recommended that Judge Del Rio be removed from office and be permanently enjoined from holding any judicial office. This Court heard oral arguments on the matter on June 9, 1977. On July 29, 1977, we denied the Commission’s recom mendation that Judge Del Rio be permanently enjoined from office and instead suspended him from office for a period of five years without salary. See In the Matter of Del Rio, supra.
On March 4, 1977, upon review of the opinion and recommendation of the Commission to this Court regarding Complaint No. 18, the Board issued an order pursuant to Grievance Board Rule 16.14 directing the filing of a formal complaint by the Administrator concerning the conduct of Judge Del Rio to determine his fitness to practice law. In the same order the Board referred the matter for a hearing and report to Wayne County Hearing Panel No. 12 (hereinafter Panel).
On March 9, 1977, the Administrator filed a formal complaint against respondent incorporating the charges and findings of the Commission contained in its Formal Complaint No. 18, as amended, the report of the Master to the Commission, and the opinion and recommendation of the Commission. The formal complaint of the Adminis trator charged specifically that the allegations set forth in paragraphs 4 through 13, 15 through 19, and 22 through 24 of Formal Complaint No. 18, and the conduct set forth in the amended complaint constituted professional misconduct in violation of State Bar Rule 15, § 2, subds (1), (2), (3) and (4) and Canon 1, DR 1-102(A), subds (1), (2), (4), (5) and (6) of the Code of Professional Responsibility.
On March 10, 1977, respondent was served with the formal complaint and notice of a hearing before the Panel on March 21, 1977. Formal hearings were held before the Panel on March 21, April 20, May 11, June 6, June 17, June 28, July 7, August 9, September 8 and October 19, 1977.
On March 21, 1977, respondent requested an indefinite postponement of the proceedings. On April 11, 1977, the Board issued an order extend ing the time for respondent to file preliminary motions, directing respondent to file his answer to the formal complaint by April 25, 1977, and adjourning the cause for a hearing on June 6, 1977.
On April 11, 1977, respondent filed with the Board a motion to dismiss, motion to quash, motion to adjourn without date, motion to declare disciplinary powers of the panel in this matter, motion to conduct voir dire, motion to exclude certain material, motion to strike, motion to adjourn until completion of discovery, motion to extend time for answer, affidavit in support, notice of hearing and proof of service. On April 13, 1977, the Administrator filed an answer to respondent’s nine motions.
On April 20, 1977, respondent moved to dismiss the formal complaint of the Board for lack of jurisdiction. On April 21, 1977, the Administrator filed an answer to respondent’s motion to dismiss complaint for lack of jurisdiction.
On April 25, 1977, the Board issued an order denying respondent’s nine motions of April 11, 1977, and respondent’s motion to dismiss complaint for lack of jurisdiction.
Meanwhile, on April 25, 1977, respondent filed his answer to the formal complaint of the Board.
On May 3, 1977, the Administrator filed with the Board a motion for leave to file an amended complaint alleging that since filing the formal complaint the Administrator had discovered that respondent had falsified his affidavit of personal history in his application to take the state bar examination required by the State Board of Law Examiners. The Administrator charged specifically that respondent’s negative answer to the question whether he had ever been a party to a divorce proceeding in which he was charged with immorality or other dishonorable conduct was false, and known by respondent to be false, in that respondent had been involved as defendant in two divorce proceedings in which he had been charged with sexual misconduct and one divorce proceeding as plaintiff in which he had been charged with non-support. The Administrator claimed that respondent’s misrepresentation was in clear violation of Canon 1, DR 1-101(A) of the Code of Professional Responsibility. On May 11, 1977, the Board issued an order granting leave to file an amended formal complaint.
On May 27, 1977, respondent served his answer to the amended formal complaint and reserved the right to raise affirmative defenses. The Administrator moved to strike the claim of affirmative defenses set forth in respondent’s answer to the amended formal complaint on May 31, 1977.
At the hearing before the Panel on June 6, 1977, respondent filed a restatement of the nine motions previously filed on April 11, 1977, and an answer to the Administrator’s motion to strike respondent’s claim of affirmative defenses. The motions were again denied. At the same hearing, the Administrator sought to introduce into evidence, as Exhibit I, Formal Complaint No. 18, as amended, the report of the Master, the opinion and recom mendation of the Commission, and the transcript of the testimony taken before the Master in accordance with Grievance Board Rule 16.14(b). The Panel refused to admit into evidence the proceedings of the Commission offered by the Administrator on the basis that they did not constitute the entire record of the Commission.
On June 8, 1977, the Administrator filed with the Board a petition for order of superintending control directing the Panel to admit Exhibit I offered by the Administrator. Respondent filed with the Board a response and an affirmative defense to the Administrator’s petition for order of superintending control claiming that Grievance Board Rule 16.14(b) was unconstitutional as applied to respondent. On June 22, 1977, after a hearing on the petition for superintending control, the Board ordered the Panel to admit the complete record of the Commission and dismissed the Administrator’s petition without prejudice. The complete record of the Commission was admitted into evidence at the hearing before the Panel on June 28, 1977.
On July 7, 1977, respondent requested an adjournment of the hearing due to illness and indicated his intention to proceed to Federal court to challenge the admissibility of the record of the Commission. Over the objection of the Administrator, the hearing was adjourned until August 9, 1977.
On August 9, 1977, the Panel admitted into evidence over respondent’s objection a certified copy of this Court’s opinion in In the Matter of Del Rio, supra, which had been decided by this Court on July 24, 1977. Respondent thereafter indicated that he intended to subpoena the members of the Michigan Supreme Court to probe into their men tal processes relating to the Court’s opinion and to determine the Court’s motive and intent in promulgating Grievance Board Rule 16.14(b). Respondent also indicated his intention to subpoena Judge Quinn and the members of the Commission to establish alleged racial bias. The Panel adjourned until September 8, 1977, and instructed the Administrator and respondent to file briefs on the jurisdiction of the Panel to determine the constitutional questions raised by respondent.
On August 16, 1977, the Administrator filed a brief on the constitutional questions raised by respondent as requested by the Panel. Respondent did not file a brief in reply.
On September 1, 1977, the members of this Court were served subpoenas to appear and give evidence before the Panel on September 8, 1977, in regard to the matter of James Del Rio. The Clerk of this Court was served with a subpoena duces tecum. On September 6, 1977, the Attorney General filed a motion to quash the subpoenas.
At the hearing before the Panel on September 8, 1977, the Attorney General’s motion to quash the subpoenas of the Justices of this Court was granted. However, the Clerk of this Court did appear at the hearing and presented this Court’s file on Grievance Board Rule 16.14(b). Also, Judge Quinn testified as to his role as Master in the proceedings before the Commission.
At the hearing on September 8, 1977, respondent reiterated his desire to subpoena the members of the Commission in order to prove a "con spiracy” among the members of this Court and the members of the Commission to remove Judge Del Rio from the bench. The hearing of September 8, 1977 was adjourned to October 19, 1977, over the Administrator’s objection, to enable respondent to serve subpoenas on the members of the Commission and to enable the Commission, through its counsel, to file a motion to quash the subpoenas. The members of the Commission were served with subpoenas on September 14, 1977, and a motion to quash the subpoenas was filed by counsel for the Commission with the Board on September 28, 1977. Respondent did not file a reply brief in opposition to the motion to quash subpoenas of the members of the Commission.
At the final hearing before the Panel on October 19, 1977, the Commission’s motion to quash the subpoenas served upon its members was granted. At that point, both respondent and the Administrator rested their cases.
On November 23, 1977, the Panel filed its certified report and order of discipline with the Board. In its report the panel found:
"That the respondent’s course of conduct as a Judge of the Recorder’s Court for the City of Detroit constituted misconduct contrary to Canon 1, Code of Professional Responsibility and Rule 15, § 2(1), Supreme Court Rules Concerning the State Bar of Michigan in that his conduct was prejudicial to the proper administration of justice and Rule 15, § 2(2) in that his conduct exposed the legal profession or the courts to contempt, censure, or reproach.”
On the basis of these findings, the Panel ordered that respondent’s license to practice law be suspended through July 29, 1982.
In regard to respondent’s answer to question 28a in the affidavit of personal history submitted with his application for admission to the bar, the Panel found that respondent’s answer was false and in violation of Canon 1, DR 1-101(A) of the Code of Professional Responsibility. However, the Panel held that the "gravamen of the offense was of a technical nature” since respondent’s testimony that he had explained his divorces in an interview with the Committee on Character and Fitness of the State Bar of Michigan was unrefuted by the Administrator. Accordingly, the Panel ordered that respondent be merely reprimanded for failing to answer accurately question 28a of the affidavit of personal history.
The Administrator and respondent both filed with the Board petitions to review the report and order of the Panel. The Administrator took issue with the reprimand for failing to answer accurately question 28a of the affidavit of personal history, and respondent challenged the suspension of his license to practice law. After a show cause hearing, the Board affirmed the order of the Panel on July 10, 1978.
On July 14, 1978, respondent filed with this Court a claim of appeal from the order of affirmance of the Board. The Administrator filed a claim of cross-appeal on July 24, 1978. This Court heard oral arguments on this matter on June 5, 1979.
II
Respondent raises the following issues on appeal:
(1) Whether respondent was denied his constitutional right to equal protection because of intentional and purposeful racial discrimination.
(2) Whether the five-year suspension of respondent’s license was overly harsh.
(3) Whether respondent was denied due process of law by the application of Grievance Board Rule 16.14(b) which permits the admission of the record of the Judicial Tenure Commission proceeding before a State Bar Grievance Hearing Panel.
While it may be worthy of observation that the record of the Commission relative to respondent’s conduct as Recorder’s Court Judge has not become less disturbing over a period of two years, a rehash of that record is unwarranted. In the matter before this Court today, the standard of review is whether, upon the whole record, there is proper evidentiary support for the findings of the State Bar Grievance Board. State Bar Grievance Administrator v Kopp, 402 Mich 74; 259 NW2d 559 (1977); State Bar Grievance Administrator v Estes, 390 Mich 585; 212 NW2d 903 (1973).
The thrust of respondent’s argument on appeal, and the major theme upon which respondent’s counsel dwelled in oral argument, is that respondent was denied his constitutional right to equal protection because of intentional and purposeful racial discrimination in the administration and application of the State Bar Grievance Rules in his case by the Administrator, Panel and Board. In short, respondent claims:
"The disciplinary rules have been selectively utilized to impermissibly treat appellant in a far different and considerably harsher manner than white individuals who had previously been similarly situated or who were facing even more serious charges. Most simply stated, no other reason than racial animus exists to explain this differential treatment of appellant.”
Upon review of the record, we find respondent’s allegation of racial discrimination to have no basis in fact and to be utterly without substance. Respondent’s allegation is premised upon the notion that he was "similarly situated” with a number of other judges who had been charged with various types of misconduct. As a hypothetical proposition, we find dubious the notion that judicial or attorney misconduct cases are comparable beyond a limited and superficial extent. Cases of this type generally must stand on their own facts. In the instant case, the argument that respondent was similarly situated with other judges who had been charged with misconduct is without foundation, in terms of both the nature and the seriousness of the charges brought against him. The Commission succinctly characterized respondent’s case in its opinion:
"The huge number of instances of misconduct culled from his three-year term of office demonstrate a degree and breadth of misconduct far beyond any record heretofore presented in the eight-year history of this Commission. If Respondent’s record of misconduct were divided equally among ten judges, there would be enough evidence to warrant removal of each of them.”
Respondent argues that under the totality of the circumstances, the five-year suspension of his license to practice law is overly harsh. Respondent maintains that since judges are generally held to a higher standard of conduct than lawyers, the Panel and Board clearly abused their discretion in suspending his license for the same period of time that respondent was suspended from judicial office by this Court. Respondent would have us believe that his five-year suspension not only "represents a racially-inspired deviation from the past treatment of other judges, but it also constitutes a punitive measure, bearing no reasonable relationship to the foremost goal of a bar disciplinary proceeding — the protection of the public from 'practitioners who are not trustworthy’ We cannot agree.
In view of the record of the instant case, we perceive no abuse of discretion on the part of the Panel or the Board in suspending respondent’s license for five years. Indeed, the Administrator is adamant in his demand that respondent’s license be permanently revoked ab initio.
Respondent’s final argument is that he was denied due process of law by the application of Grievance Board Rule 16.14(b), which, in pertinent part, provides:
"The record of the Judicial Tenure Commission proceedings may be admitted at the hearing. The Administrator or the respondent may introduce additional evidence.”
Throughout the hearings before the Panel, respondent charged that Grievance Board Rule 16.14(b) was promulgated for the sole purpose of "getting” him. The history of that rule, however, belies respondent’s claim, as it is clear from the record that the major concern which led to the promulgation of the rule was avoiding the duplication of hearings with the same witnesses and evidence where a respondent is being investigated by both the Commission and the Board. This rule, founded upon reasonable concerns, was promulgated well before respondent’s judicial tenure hearing. He is bound to have been aware of its potential applicability.
In challenging Grievance Board Rule 16.14(b), respondent relies on State Bar Grievance Administrator v Jaques, 401 Mich 516; 258 NW2d 443 (1977), in which this Court held that it was error for a hearing panel to receive and consider as substantive evidence the edited transcript of testimony taken at an earlier hearing before a different hearing panel, which had been disqualified from deciding the complaint. We find that Jaques is inapposite to respondent’s case. In the instant case we have a rule which expressly provides that the record of the Commission may be admitted into evidence by the hearing panel. Moreover, the rule provides that the Administrator and a respondent may each introduce additional evidence.
Ill
On cross-appeal, the Administrator argues that the Panel erred in finding that respondent’s failure to answer accurately question 28a in his affidavit of personal history given with his application for admission to the bar was a technical violation and that the Panel abused its discretion in reprimanding respondent rather than revoking ab ini tio his license to practice law. As noted, supra, the Panel based its order on the fact that the Administrator failed to controvert respondent’s testimony that he had explained his divorces in an interview with the Committee on Character and Fitness of the State Bar of Michigan.
While we perceive an inexcusable laxness on respondent’s part in failing to answer accurately question 28a, and a lack of diligence in failing to present the Board of Law Examiners with the requested documents relative to his divorces, on the present record we are not convinced that respondent sought to wilfully mislead the State Bar in his application for admission. Accordingly, we affirm the reprimand of respondent for failing to answer accurately question 28a of the affidavit of personal history.
IV
In conclusion, we find the record amply supports the Panel’s findings that respondent’s conduct as a Judge of the Recorder’s Court for the City of Detroit constituted misconduct in violation of State Bar Rule 15, § 2(1) in that his conduct was prejudicial to the proper administration of justice and State Bar Rule 15, § 2(2) in that his conduct exposed the legal profession or the courts to contempt, censure, or reproach. In regard to the Administrator’s cross-appeal, we affirm the order of the Panel reprimanding respondent for failing to answer accurately question 28a of the affidavit of personal history in his application for admission to the bar.
Affirmed. No costs, neither party having prevailed in full.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Grievance Board Rule 16.14 provided:
“(a) If the Board orders a hearing on the alleged misconduct of a judge, the hearing panel’s legal counsel shall file a complaint setting forth the facts of the alleged misconduct within 10 days after the Judicial Tenure Commission files its order with the Supreme Court under GCR 1963, 932. The chairman of the hearing panel shall designate a place for the hearing and a date that is not later than 20 days after the complaint is filed. The complaint and notice of the hearing shall be served within 5 days after the complaint is filed. Within 10 days after the complaint and notice of the hearing are served, the respondent judge shall file an answer.
"(b) Hearing procedures shall be as outlined in Grievance Board Rule 16.11. The record of the Judicial Tenure Commission proceedings may be admitted at the hearing. The Administrator or the respondent may introduce additional evidence.
"(c) Within 30 days after the conclusion of the hearing, the panel shall file with the clerk of the Supreme Court a report and order conforming to Grievance Board Rule 16.13 and serve them upon the respondent and the Board. If the Judicial Tenure Commission has recommended discipline or suspension, the panel may not impose a sanction greater than that recommended by the Judicial Tenure Commission.”
State Bar Rule 15, § 2, subds (1), (2), (3) and (4) provided:
"The following acts or omissions by a member of the bar of this State, individually or in concert with any other person or persons, shall constitute misconduct and shall be grounds for discipline whether or not the act or omission occurred in the course of an attorney-client relationship.
"(1) Conduct prejudicial to the proper administration of justice;
"(2) Conduct that exposes the legal profession or the courts to obloquy, contempt, censure or reproach;
"(3) Conduct that is contrary to justice, ethics, honesty or good morals;
"(4) Conduct that violates the standards or rules of ethics or professional responsibility adopted from time to time by the Supreme Court of this State;”.
Canon 1, DR 1-102(A), subds (1), (2), (4), (5) and (6) of the Code of Professional Responsibility provides:
"A lawyer shall not:
"(1) Violate a Disciplinary Rule.
"(2) Circumvent a Disciplinary Rule through actions of another.
"(4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
"(5) Engage in conduct that is prejudicial to the administration of justice.
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
Question 28 of the affidavit of personal history required by the State Board of Law Examiners read in pertinent part as follows:
"Have you ever been:
"a. A party to divorce or support proceedings or to any legal action or proceeding, civil or criminal, in which you were charged with fraud, embezzlement, immorality, or other dishonorable conduct? If so, attach copies of the declaration, complaint, cross-declaration or cross-complaint, the answer thereto, and the opinion, judgment or decree of the court. (In divorce cases these documents are required likewise of plaintiffs or cross-plaintiffs.)”
"(A) A lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with, his application for admission to the bar.”
Respondent claimed that Grievance Board rule 16.14(b) was unconstitutional and promulgated solely for the purpose of disbarring him. Respondent also claimed that he was denied due process by the Commission and equal protection by both the Commission and the Board in that the proceedings brought against him were racially motivated.
As mentioned, supra, the Clerk of this Court appeared before the hearing panel on September 8, 1977, and presented in evidence this Court’s file on Grievance Board Rule 16.14(b). This Court’s file on the rule reveals that as early as April 26, 1973, it was suggested that there was a need to address the problem of the lack of coordination between the proceedings of the State Bar Grievance Board and the Judicial Tenure Commission where a respondent was both an attorney and a judge. It is also clearly evident from the file that the impetus for the adoption of the rule was In re Kapcia, 389 Mich 306; 205 NW2d 436 (1973), in which this Court was presented with the anomalous situation involving the suspension of the license to practice law of an attorney who was also a probate judge in a county where the probate judge was permitted to practice law. Thus, it is apparent that the origins of Grievance Board Rule 16.14(b) predate the Commission’s complaint against Judge Del Rio by about four years and arose from substantially different circumstances.
Grievance Board Rule 16.14(b) was originally promulgated as Grievance Board Rule 16.6.2 on September 19, 1975. The rule was renumbered 16.14(b) on February 9, 1976. With the repeal of Grievance Board Rules 16.1-16.37 and the adoption of GCR 1963, 950-979 on May 4, 1978, to be effective October 1, 1978, the rule in question became GCR 1963, 965.3. | [
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Per Curiam.
We must again apply the same-transaction test we set forth in People v White, 390 Mich 245; 212 NW2d 222 (1973). We believe the circuit judge correctly concluded that the policy had been violated, and we affirm his judgment.
The defendant, Leslie Sullivan, was charged with assault with intent to do great bodily harm on his wife and larceny over $100 from his stepson. The defendant apparently had $7,300 in his safe, which was gone when he came home from work one day, and he beat his wife until she told him that her son had money at his house. The larceny charge derives from the fact that defendant went to the house of the wife’s son with the wife and took money (more than $6,000) from the bathroom, apparently while no one was at home. The offenses took place on October 25, 1977.
The defendant was charged in separate informations. He waived preliminary examination on the assault with intent to do great bodily harm charge on November 10, 1977. The assault with intent to do great bodily harm trial was scheduled for January 30, 1978. However, trial counsel sought and obtained an adjournment until April 24, 1978.
A preliminary examination was held on the larceny charge on November 14, 1977. The prose cutor conducted the preliminary examination in the larceny case, and thus presumably knew in November that the larceny and assault with intent to do great bodily harm charges involved the same transaction.
The trial on the larceny charge was held on March 13, 1978. On the morning of the trial, the prosecutor moved for consolidation on the ground that the two charges involved a single transaction, and this Court’s decision in White required consolidation. Defense counsel opposed the motion as untimely:
"Mr. Ellis [Defense Counsel]: Your Honor, I would object to the consolidation at this point. The Prosecuting Attorney, Mr. Grant, took these cases personally. He conducted the preliminary examinations himself, personally. At the one examination, when Mr. Sullivan and I were approximately 15 minutes late, it was one of those occasions the examining magistrate increased the bond to $5,000. At all times Mr. Grant knew what was happening in these cases. Now today, the day of trial the assistant prosecutor comes in, wants to consolidate the cases.
"We are prepared for trial today. We have subpoenaed witnesses, and we feel that the case should go to trial.”
The circuit judge ruled that the motion was untimely and that from the facts as stated by the prosecutor there was a question whether the charge arose out of the same transaction.
"The Court: I see. All right. Well, the court will rule, first of all, that the motion by the prosecution is not timely. Both of these charges came out of their office— assumed to have been aware of it for quite a period of time.
"Secondly, whether or not they are the same transaction, there is some question involved, from what had been given to the court by the prosecutor. So, we will proceed with this trial.” (Emphasis added.)
At the larceny trial, the defendant was acquitted. On March 31, 1978, counsel for the defendant moved to dismiss the assault charge because it was not joined and tried with the larceny charge. At the hearing on the motion to dismiss, the prosecutor argued that the transaction was not the same: "They’re completely different, and the complainant or victim of the two different charges are completely different.” The prosecutor also claimed that the defendant had waived the double jeopardy issue because the defendant was "aware of the intent of the prosecution to go ahead on both of these charges”.
The circuit judge who heard the motion to dismiss was not the same judge who presided at the larceny trial. He granted the motion to dismiss.
The Court of Appeals reversed. 88 Mich App 477; 277 NW2d 2 (1979). It noted that in White we had indicated that the same-transaction test could be subject to exceptions.
"We are aware that in certain situations, strict application of the same transaction test could lead to the anomalous result of foreclosing prosecution for an offense where the state had made a diligent and good faith effort to protect the defendant’s constitutional rights.
"We emphasize that our primary objective in adopting the same transaction test is to insure that a criminal defendant receives meaningful protection under the double jeopardy clause. If actual situations should arise in which application of the same transaction test would not serve that objective, we will, in such a case, consider the adoption of limited exceptions to the same transaction test.” 390 Mich 258, fn 6.
Based on that language, the Court of Appeals concluded:
"We believe that the instant case presents circumstances warranting an exception to the application of the 'same transaction test’. The prosecutor made every effort to protect defendant’s right to have these charges joined. However, he was thwarted in his attempt by the arguments of defense counsel. Under these circumstances, we are convinced that a sufficient effort was made by the prosecutor to protect defendant’s constitutional rights.
"Therefore, we hold that the present fact situation provides an exception to the application of the same transaction test. In so holding, we note that our decision will do no injustice to the underlying policies of the same transaction test. This is not a case involving prosecutorial sentence-shopping or harassment. Rather this case presents a good faith effort on the part of the prosecutor to protect defendant’s rights. Under these circumstances we conclude that the trial on the assault charges is not barred.” 88 Mich App 480-481.
We disagree with the Court of Appeals. If the defendant argued in opposition to the prosecutor’s consolidation motion that the charges should not be joined because they did not arise out of the same transaction, then a finding of waiver would be defensible. In that case, the defendant’s consent to separate prosecution avoids the underlying possibility of vexatious multiple prosecution. Ashe v Swenson, 397 US 436, 448; 90 S Ct 1189; 25 L Ed 2d 469 (1970). However, the defendant objected to the consolidation on the point of timeliness and because he was ready to proceed that day on the larceny charge. There was no waiver of a double jeopardy claim accepted or expressed by the defendant.
The prosecutor knew of both charges well before the March 13 trial date. He was dilatory in bringing his motion. The reason the defendant has a sound basis to object to facing the second charge now is due to the prosecutor’s tardiness. The defendant should not have to face two trials for offenses that arose out of the same transaction when the prosecutor was found by the judge to have been untimely in moving to join the charges. Furthermore, there appears no basis to conclude that the judge abused his discretion by denying the consolidation for untimeliness.
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the Court of Appeals judgment and affirm the circuit court judgment.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Per Curiam
(to reverse and remand). This matter requires us to resolve a conflict in our Court of Appeals and determine whether the trial court reversibly erred in resentencing defendant without the benefit of a new or reasonably updated presentence report detailing, among other potential items, defendant’s prior prison behavior. We resolve this inquiry in the affirmative and, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we remand this matter for resentencing before a different judge, who is to utilize a reasonably updated presentence report. The decision of the Court of Appeals is therefore reversed.
The facts of this case are quite simple although they now cover an expanse of nearly nine years. In 1972, defendant’s original 1971 plea to a charge of second-degree murder and 45-60 year sentence were vacated because of errors in the plea proceeding. Defendant was subsequently tried by a jury and convicted of second-degree murder. Life imprisonment was imposed for this conviction. The Court of Appeals affirmed that conviction but remanded for resentencing on the ground that the trial court had failed to affirmatively enunciate its reasons for levying a higher sentence than that earlier meted out pursuant to defendant’s plea. People v Triplett, 68 Mich App 531; 243 NW2d 665 (1976). On remand in 1976, defendant was resentenced to a term of 40-60 years imprisonment. Despite numerous claimed infirmities, the Court of Appeals affirmed that sentence in a 2-to-l decision. People v Triplett (After Remand), 91 Mich App 82; 283 NW2d 658 (1979) (N. J. Kaufman, P.J., dissenting). Since 1971, therefore, defendant has been incarcerated in this state’s penal facilities.
At resentencing in 1976, defendant objected to the trial court’s reliance on the original presentence report which had been prepared in 1972 relative to defendant’s conviction that year. Defendant contested the alleged staleness of that report since it had not been updated to reflect defendant’s subsequent prison conduct and alleged progress toward rehabilitation spanning the five years of defendant’s incarceration, 1972 through 1976. Indeed, although documents from two prison officials who had observed defendant during the five years of his incarceration had been submitted for review on resentencing, neither of those materials were included in this report. Nor was there any indication that a further presentence investigation had been made of defendant covering that period. Rather, the only alteration made to the 1972 report considered at defendant’s 1976 resentencing was the inclusion of a brief cover sheet prepared by the Probation Department of Recorder’s Court. That terse introduction merely summarized the history of defendant’s case since his 1971 plea-based conviction but added no further insight into defendant’s conduct since 1972.
The Court of Appeals recognized that "[a]n updated presentence report * * * would be a valuable tool in resentencing”, but ruled that the "failure to include the conduct in the presentence report was * * * not prejudicial” because the re-sentencing judge had been informally "apprised of the defendant’s prison conduct” and had "indicated the weight to be given thereto”. Id., 86. Presiding Judge Kaufman succinctly dissented and would have directed resentencing with an updated presentence report of defendant’s case since his 1971 plea-based conviction. Id., 88-89.
In People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973), this Court emphasized its commitment to the principles that criminal punishment must fit the offender rather than the offense alone and that sound discretion must be exercised in sentencing matters. We stated:
"The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. A judge needs complete information to set a proper individualized sentence.” (Emphasis supplied.)
See North Carolina v Pearce, 395 US 711, 723; 89 S Ct 2072; 23 L Ed 2d 656 (1969), citing Williams v New York, 337 US 241, 247; 69 S Ct 1079; 93 L Ed 1337 (1949).
To effectuate these goals, it is patent that sentencing inquiries must not be undertaken in a vacuum. Rather such inquiries must be guided by complete and detailed information regarding the offender if the sentence prescribed is to fulfill society’s dual goals of rehabilitation and protection. See Williams, supra, 247.
The presentence report is a vital and necessary component of this effort to prescribe informed, individualized punishment in felony matters. People v Lee, 391 Mich 618, 631-639; 218 NW2d 655 (1974). See generally Case Note, Criminal Procedure — Accuracy of Presentence Reports, 22 Wayne L Rev 899 (1976). Indeed, unlike its discretionary predecessor, 1927 PA 175, ch XI, § 14, the present act mandates that "[b]efore sentencing any person charged with a felony, * * * the probation officer shall inquire into the antecedents, character and circumstances of such person or persons, and shall report thereon in writing to such court or magistrate”. (Emphasis supplied.) MCL 771.14; MSA 28.1144. See generally McFarlin, supra, 567-571. In People v Brown, 393 Mich 174, 181; 224 NW2d 38 (1974), this Court explicitly recognized the critical importance of such a document in our holding that sentence may not be pronounced without the aid of a presentence report. It was further held that such a report may not be waived "even if the prosecutor, judge and defendant deemed it expedient in a particular case” to do so. Id., 181. Our case law and statutory pronouncements therefore clearly attest to the pivotal significance of both the presentence investigation and report in the devel opment of individualized sentencing determinations.
Although this Court has not until today passed on the requirement that a reasonably updated presentence report must be utilized in sentencing for felonies, we have repeatedly indicated that such reports must be complete, accurate, and reliable. See Wayne Circuit Judges v Wayne County, 15 Mich App 713, 725-726; 167 NW2d 337 (1969), rev’d on other grounds 383 Mich 10; 172 NW2d 436 (1969); People v Brown, 393 Mich 174, 180-181; 224 NW2d 38 (1974), citing People v Amos, 42 Mich App 629; 202 NW2d 486 (1972); People v Lee, supra, 635, 639; People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971). Our holding that a reasonably updated report must be utilized at felony sentencing is merely a logical extension of such earlier indications. Indeed, our holding is a necessary corollary to the principle that sentencing must be individualized and tailored to the particular circumstances of the case and the offender at the time of sentencing; "[sentencing a defendant without an adequate knowledge of his needs would thereby reduce the sentencing process from a first step toward rehabilitation to the dignity of a game of chance”. People v Amos, 42 Mich App 629, 638; 202 NW2d 486 (1972), cited with approval in People v Brown, 393 Mich 174, 180; 224 NW2d 38 (1974). As correctly recognized by both the Court of Appeals majority and dissent below:
"The sentencing court should make every effort to individualize sentences in order to further the goal of rehabilitation. In this regard a defendant’s conduct while in prison may shed considerable light on the prospect of rehabilitation. An updated presentence report which includes prison conduct would describe the defendant’s most recent behavior and would be a valuable tool in resentencing. Such a procedure would not be a burden on the probation department since records are kept at prison which could easily be made available.” Triplett (After Remand), supra, 86, 88. See People v Moore, 91 Mich App 319; 284 NW2d 483 (1979).
For the above reasons, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we rule that defendant’s sentence should be set aside and this matter remanded for resentencing before a different judge who is to utilize an updated presentence report. The decision of the Court of Appeals is accordingly reversed.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
In People v Moore, 91 Mich App 319; 284 NW2d 483 (1979), Judge N. J. Kaufman authored an opinion remanding that matter for resentencing and directing the trial judge to secure an updated presentence report prior to resentencing in order to assure due consideration of defendant’s previous ten years of prison conduct. In the opinion of Judge Kaufman, such a step was “necessary to insure that the trial judge was fully and accurately acquainted with defendant’s background [citations omitted]”. Id., 321. Chief Judge Danhof dissented.
In the Court of Appeals below, People v Triplett (After Remand), 91 Mich App 82; 283 NW2d 658 (1979), the majority indicated its preference for an updated report but found that “[t]he failure to include the conduct in the presentence report was * * * not prejudicial”. Id., 86. Judge Kaufman dissented from this decision and would have remanded for resentencing with an updated report.
In People v Allen, 79 Mich App 100; 261 NW2d 225 (1977), a unanimous panel held that the failure to provide a new or updated presentence report was not error since consideration of subsequent prison conduct on resentencing would amount to a usurpation of the executive power to commute sentences. The rationale for this ruling was expressly rejected by both the Moore and Triplett panels. We too find that ratio decidendi fallacious.
While we here emphasize the critical role of the presentence report in a sentencing judge’s consideration of the rehabilitation goal, in People v Brown, supra, 181, we noted that "the Legislature, speaking for all the people”, has required its use. Then Chief Justice T. M. Kavanagh, although in dissent, spoke the following general philosophy:
"Judges need this discretionary judgment in order to tailor the punishment to fit the needs of the individual case. The exercise of this judicial discretion at sentencing is essential to protect the interests of both the defendant and the public.” Id., 185.
See People v McFarlin, supra, 574. | [
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Per Curiam.
When the record shows that a local policy has replaced the discretion of a sentencing judge, reversible error has been committed. This defendant must be resentenced.
I
Arturo Chapa was charged in Bay Circuit Court with delivery of and conspiracy to deliver heroin. He pled guilty to the heroin delivery charge in return for dismissal of the conspiracy charge. On April 17, 1977, the judge, in sentencing him to imprisonment for 8 to 20 years, said in part:
"The court is well acquainted with the program that Saginaw County has concerning heroin and it goes without saying that that has considerable impact upon our community, and in order to protect this area we have to give consideration to the program that they have.
"Accordingly it is our opinion that this removes much of the discretion that the court might otherwise have relative to sentences. There’s no mistake here it was a very deliberate intent to participate in the delivery of a controlled substance, and that was heroin, and I see no mitigating circumstances arising out of the actual sales transaction.
"Accordingly, it is the opinion of the court that we have an obligation to sentence you to prison and that in accordance with the other standards that are being used, it must be a very stringent sentence. Accordingly, it is our sentence and judgment that you be confined to the State Prison of Southern Michigan, Blackman Township, Jackson County, Michigan, for a minimum period of 8 years which is fixed by the court and a maximum period of 20 years which is fixed by law.” (Emphasis added.)
Chapa claimed on appeal that the sentence was "illegal” because it was based on a policy of mandatory prison terms for heroin dealers despite his personal qualifications for probation or leniency. The Court of Appeals affirmed.
II
There are few crimes for which the Legislature has adopted a policy requiring a minimum term of imprisonment. For most crimes, the policy is for individualized sentencing:
"The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. A judge needs complete information to set a proper individualized sentence.” People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973).
The sentencing judge erred here in limiting his discretion in accordance with the stated local policy.
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we set aside the defendant’s sentence and remand to the Bay Circuit Court for resentencing. We have considered the defendant’s remaining issue and find it without merit. The defendant’s motion to consolidate has become moot and is denied.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
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Williams, C.J.
Introduction
The primary issue in this case is whether offenses defined in the Penal Code as misdemeanors punishable by up to two years in prison may be considered "felonies” for the purposes of the habitual-offender, probation, and consecutive sentencing provisions of the Code of Criminal Procedure, where the code defines "felony” as an offense punishable by more than one year in the state prison. Two-year misdemeanors, of course, fall within the Code of Criminal Procedure’s definition of felony.
The plain language of the statutes involved, considered in light of the purposes sought to be accomplished, leads us to conclude that the Legislature intended two-year misdemeanors to be considered as misdemeanors for purposes of the Penal Code, but as felonies for purposes of the Code of Criminal Procedure’s habitual-offender, probation, and consecutive sentencing statutes.
People v Thompson also raises two questions regarding the interpretation given other language in the consecutive sentencing statute in the Code of Criminal Procedure. The first question is whether one must be convicted of the particular "prior charged” felony as a first offense in order to receive consecutive sentencing for a second offense. We hold that a two-year misdemeanor conviction arising out of the first felony charge may serve as the "conviction of the prior charged offense” required for consecutive sentencing. See MCL 768.7b(a); MSA 28.1030(2)(a).
The second question is whether the disposition of a charge remains "pending” after a defendant pleads guilty to a lessér charge, but before the defendant is sentenced on the lesser charge and before the original charge is formally dismissed. We hold that a charge remains "pending” for purposes of this statute until a defendant is sentenced on a conviction arising out of the offense, and until the original charge arising out of the offense is dismissed.
The final question raised in Thompson is whether an ex parte conference between a sentencing judge and a probation officer regarding a presentence report violates a defendant’s right to counsel. We hold that the right to counsel is violated, and a defendant must be resentenced, if the sentencing judge obtains information about the defendant from the probation officer that is not included in the written presentence report.
The application of these rules to the facts presented by the cases at bar leads us to conclude that the convictions and sentences received by the defendants should be upheld. We also hold that Thompson need not be resentenced because the information obtained ex parte by the sentencing judge from the probation officer was not about Thompson.
I. Facts
People v Smith
Timothy Smith pled guilty in the Lenawee Circuit Court to breaking and entering an unoccupied dwelling, MCL 750.110; MSA 28.305, and to resisting an officer in the discharge of his duty, MCL 750.479; MSA 28.747. At the same proceeding, he pled guilty of being a third felony offender, MCL 769.11; MSA 28.1083, with the breaking and entering serving as the principal felony. He also pled guilty of being a fourth felony offender, MCL 769.12; MSA 28.1084, with the resisting and obstructing charge serving as the principal offense.
The prior convictions serving as the bases for Smith’s habitual-offender charges included breaking and entering, joyriding, and resisting and obstructing an officer in the discharge of his duty. The joyriding and resisting and obstructing statutes provide that commission of the offense shall be a misdemeanor punishable by a maximum of two years in the state prison. MCL 750.414, 750.479; MSA 28.646, 28.747. Smith was sentenced to serve terms of ten to twenty years and from ten to fifteen years for the habitual-offender convictions.
The Court of Appeals affirmed Smith’s convictions in an unpublished opinion, with Judge Maher dissenting. On September 19, 1984, we granted leave to appeal. 419 Mich 922 (1984).
People v Wallace
Paul Wallace pled guilty in the Barry Circuit Court to joyriding, MCL 750.414; MSA 28.646. As stated above, the joyriding statute provides that commission of the offense is a misdemeanor punishable by a maximum of two years in the state prison. Wallace was sentenced to serve five years probation, with the first year to be served in the Barry County Jail.
The Court of Appeals affirmed in an unpublished opinion, with Judge Wahls dissenting. On September 19, 1984, we granted leave to appeal. 419 Mich 923 (1984).
People v Shoup
David Shoup pled guilty in the Mason Circuit Court to joyriding, MCL 750.414; MSA 28.646. As stated above, the joyriding statute provides that commission of the offense is a misdemeanor punishable by a maximum of two years in the state prison. Shoup was sentenced to serve three years probation, with the first nine months to be served in the Mason County Jail.
The Court of Appeals affirmed in an unpublished opinion, with Judge Wahls dissenting. On September 19, 1984, we granted leave to appeal. 419 Mich 923 (1984).
People v Thompson
Jeffrey Thompson was charged with arson of personal property over $50 on September 18, 1980. The offense is a four-year felony. MCL 750.74; MSA 28.269. On September 29, 1980, Thompson pled guilty in the St. Clair Circuit Court to a reduced charge of attempted arson of personal property over $50. The statute proscribing attempted arson, MCL 750.92; MSA 28.287, provides that the offense is a misdemeanor punishable by a maximum of two years in the state prison.
On October 3, 1980, while awaiting sentencing on his misdemeanor conviction, Thompson attempted a breaking and entering.
Thompson eventually pled guilty to the charge of attempted breaking and entering. He was sentenced for both convictions at the same proceeding. He received sixteen to twenty-four months for attempted arson, and three years, four months to five years for attempted breaking and entering. He was ordered to serve the sentences consecutively. At the sentencing, the prosecutor dismissed the original felony charge.
The Court of Appeals affirmed. 117 Mich App 210; 323 NW2d 656 (1982). On February 28, 1984, we granted leave to appeal. 418 Mich 946 (1984).
II. The Alleged Statutory Conflict
Defendants allege that provisions of the Penal Code which label particular offenses which are punishable by up to two years in state prison as "misdemeanors” conflict with provisions of the Code of Criminal Procedure which define offenses punishable by more than one year in the state prison as "felonies” and that the Penal Code label should control. The relevant provisions of each code are set forth below.
A. The Statutes
1. The Penal Code
The purpose of the Penal Code is to "define crimes and prescribe the penalties therefor.” Preamble, MCL 750.1 et seq.; MSA 28.191 et seq. The Penal Code includes its own definitional provisions. Crimes are divided into "felonies” and "misdemeanors,” MCL 750.6; MSA 28.196. A "felony” is an "offense for which the offender, on conviction may be punished by death, or by imprisonment in state prison.” MCL 750.7; MSA 28.197. A "misdemeanor” is an act or omission that is not a felony, which is punishable by fine, penalty, forfeiture, or imprisonment, MCL 750.8; MSA 28.198, or an act prohibited by a statute which imposes no penalty for the violation, MCL 750.9; MSA 28.199.
In some instances, the same provision of the Penal Code labels a crime a felony or misdemeanor and also sets the maximum penalty. See, e.g., MCL 750.75; MSA 28.270 and MCL 750.81a; MSA 28.276(1). In other instances, one provision labels the crime, and another supplies the penalty. A person convicted of a misdemeanor for which the penalty is not specifically designated is punishable by a maximum of ninety days in the county jail or a $100 fine, or both. MCL 750.504; MSA 28.772. A person convicted of a felony for which the penalty is not specifically designated is punishable by a maximum of four years in state prison or a $2,000 fine, or both. MCL 750.503; MSA 28.771.
The defendants in the cases at bar have all been convicted of offenses which are labeled "misdemeanors” and which are punishable by a maximum of two years imprisonment under the Penal Code. MCL 750.414; MSA 28.646, MCL 750.479; MSA 28.747, MCL 750.74; MSA 28.269, MCL 750.92; MSA 28.287. These offenses have been referred to as "two-year,” "circuit court,” or "high” misdemeanors.
2. Code of Criminal Procedure
The purpose of the Code of Criminal Procedure is to "codify the laws relating to criminal procedure.” Preamble, MCL 760.1 et seq.; MSA 28.841 et seq. The Code of Criminal Procedure has its own definitional section:
As used in this act:
(g) "Felony” means a violation of a penal law of this state for which the offender, upon conviction, may be punished by death or by imprisonment for more than 1 year, or an offense expressly designated by law to be a felony.
(h) "Misdemeanor” means a violation of a penal law of this state which is not a felony, or a violation of an order, rule, or regulation of a state agency that is punishable by imprisonment or by a fine that is not a civil fine. [MCL 761.1; MSA 28.843. Emphasis added.]
An offense labeled a two-year misdemeanor under the Penal Code falls within the definition of "felony” under the Code of Criminal Procedure.
The designation of an offense as a felony for the purposes of the Code of Criminal Procedure has particular consequences. Those convicted of felonies face the possibility of serving longer sentences under at least three provisions of the Code of Criminal Procedure. The "habitual offender” statute, for example, provides that one’s sentence may be enhanced in various prescribed ways where
a person has been convicted of a felony, an attempt to commit a felony, or both, whether the conviction occurred in this state or would have been for a felony in this state if the conviction obtained outside this state had been obtained in this state, and that person commits a subsequent felony within this state .... [MCL 769.10; MSA 28.1082.]
Similar provisions allow further enhancement where one has previously been convicted of two, three, or more felonies. MCL 769.11, 769.12; MSA 28.1083, 28.1084.
The probation statute provides:
If the defendant is convicted for an offense which is not a felony the period of probation shall not exceed 2 years. If the defendant is convicted of a felony which is not a major controlled substance offense, the period of probation shall not exceed 5 years. [MCL 771.2; MSA 28.1132.]
The consecutive sentencing statute provides:
When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere for the subsequent offense, the following shall apply:
(a) The sentences imposed for conviction of the prior charged offense and a subsequent offense, other than a major controlled substance offense, may run consecutively. [MCL 768.7b; MSA 28.1030(2).]
B. Court of Appeals Interpretation
For purposes of the habitual-offender statute, all panels of the Court of Appeals have held that two-year misdemeanors may be deemed felonies. People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979); People v Davis, 89 Mich App 588; 280 NW2d 604 (1979); People v Rice, 101 Mich App 1; 300 NW2d 428 (1980), rev’d on other grounds 411 Mich 883; 306 NW2d 102 (1981).
Likewise, for purposes of the probation statute, all panels have held that two-year misdemeanors may be deemed felonies. People v Stiles, 99 Mich App 116; 297 NW2d 631 (1980), lv den 410 Mich 891 (1981); People v Reuther, 107 Mich App 349; 309 NW2d 256 (1981) (Bronson, J., concurring in part and dissenting in part); People v Woodard, 134 Mich App 128; 350 NW2d 761 (1984); People v Hathcox, 135 Mich App 82; 351 NW2d 903 (1984).
However, for purposes of the consecutive sentencing statute, panels have split on the question whether two-year misdemeanors may be deemed felonies. Panels holding that two-year misdemeanors may be deemed felonies include People v Comstock, 139 Mich App 276; 361 NW2d 792 (1984); People v Coleman, 141 Mich App 12; 366 NW2d 67 (1985). Those reaching the opposite conclusion include People v Alford, 104 Mich App 255; 304 NW2d 541 (1981); People v Frost, 120 Mich App 328; 328 NW2d 44 (1982). We look to canons of statutory construction in order to determine which of these conflicting interpretations best effectuates the legislative intent.
III. Statutory Construction
Courts are required to ascertain and give effect to the purpose and intent of the Legislature by examining the provisions in question. The statutory words must be considered in light of the general purpose sought to be accomplished. White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979). The Legislature may be presumed to have intended a meaning that is clearly expressed and to have intended that every word and section be given effect. Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 738; 330 NW2d 346 (1982). The Legislature may also be presumed to know of existing legislation on the same subject. People v Buckley, 302 Mich 12, 21; 4 NW2d 448 (1942). Statutes which relate to the same persons or things, or which have a common purpose, are to be read in pari materia, and a strict construction will not be given to one statute where doing so would defeat the main purpose of another on the same subject. Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558, 561; 132 NW2d 660 (1965), app dis, cert den 382 US 107 (1965).
While the Penal Code and the Code of Criminal Procedure relate generally to the same thing and must therefore be read in pari materia, the two codes were separately enacted and have distinct purposes. As concerns this case, the purpose of the Penal Code is "to define crimes and prescribe the penalties therefor . . . .” Preamble, MCL 750.1 et seq.; MSA 28.191 et seq. The purpose of the Code of Criminal Procedure is to "codify the laws relating to criminal procedure . . . Preamble, MCL 760.1 et seq.; MSA 28.841 et seq.
Included in the Code of Criminal Procedure are provisions for the proper procedures to be followed, for example: upon arrest, MCL 764.1 et seq.; MSA 28.860 et seq., at the preliminary examination, MCL 766.1 et seq.; MSA 28.919 et seq., at trial, MCL 768.1 et seq.; MSA 28.1024 et seq., and at judgment and sentencing, MCL 769.1 et seq.; MSA 28.1072 et seq. The Legislature expressly provided that the Code of Criminal Procedure be deemed "remedial” and be "liberally construed to effectuate the intents and purposes” of the act. MCL 760.2; MSA 28.842.
Each code has its own definitions of "misdemeanor” and "felony” in order to more effectively promote the distinct purposes of each. The Penal Code’s definitions serve to describe the grade of each offense and, in some instances, to prescribe the penalty for the offense. The definitions in the Code of Criminal Procedure govern which proce dural protections and which collateral consequences of conviction attach to a given offense.
The Legislature clearly expressed its intent that offenses punishable by more than one year of imprisonment be treated as "felonies” throughout the Code of Criminal Procedure. Such a designation brings both benefits and liabilities to a defendant. One accused of a "felony” as defined in the Code of Criminal Procedure is sometimes afforded greater procedural protections than one accused of a "misdemeanor” as defined in the Code of Criminal Procedure. One can infer that the Legislature considered one year of imprisonment the threshold loss of liberty which should trigger these additional protections.
By the same token, one convicted of a "felony” as defined in the Code of Criminal Procedure may incur collateral penalties which result in harsher treatment than is received by one convicted of a "misdemeanor” as defined in the Code of Criminal Procedure. One can infer that the Legislature believed that those guilty of committing offenses punishable by at least one year of imprisonment had committed crimes sufficiently serious to warrant the imposition of particular collateral consequences.
It is obvious that the Penal Code definitions apply only to the Penal Code. Similarly, the definitions in the Code of Criminal Procedure are limited in application to that code. To apply the definition of misdemeanor in one statute to the operations of the other statute would defeat the purposes of the other statute.
We have previously held that the grade given an offense in the Penal Code is not the controlling consideration in determining the procedural rights afforded an accused outside the Penal Code. People v Mallory, 378 Mich 538; 147 NW2d 66 (1967). In Mallory, the defendant had been convicted of receiving and concealing stolen property under the value of $100, a misdemeanor punishable by ninety days in jail or a $100 fine or both. MCL 750.504, 750.535; MSA 28.772, 28.803. The defendant claimed that he was entitled to appointed appellate counsel and a free trial transcript under the constitutional provision which states:
In every criminal prosecution, the accused shall have the right ... to have the assistance of counsel for his defense; to have an appeal as a matter of right; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal. [Const 1963, art 1, § 20. Emphasis added.]
We held that the constitutional guarantee of an appeal as a matter of right from criminal prosecutions required that an indigent be provided with appointed appellate counsel and a free transcript of the proceedings at trial, noting that "[t]he name 'felony’ or 'misdemeanor’ can make small difference as relates to [defendant’s] constitutional right to such assistance.” Id., p 559.
The label placed upon an offense in the Penal Code is just as irrelevant in determining statutorily mandated post-conviction procedures in the Code of Criminal Procedure as it is in determining constitutionally mandated post-conviction procedures. The three post-conviction statutes at issue here, the habitual-offender statute, the probation statute, ánd the consecutive sentencing statute, all have the same general purpose: to enhance the punishment imposed upon those who have been found guilty of more serious crimes and who repeatedly engage in criminal acts. In order to achieve the Legislature’s intended purpose in the Code of Criminal Procedure, we find that the Legislature meant exactly what it said: Offenses punishable by more than one year of imprisonment are "felonies” for purposes of the habitual-offender, probation, and consecutive sentencing statutes. Because misdemeanors punishable by two years of imprisonment fall within the "felony” definition, they may be considered felonies for purposes of these statutes. _
We reject defendants’ contention that the rule of lenity supports a finding that two-year misdemeanors may not be considered felonies. The rule of lenity requires that ambiguities in penal statutes be resolved against the imposition of harsher punishments. Bell v United States, 349 US 81, 83; 75 S Ct 620; 99 L Ed 905 (1955). However, that rule applies only in the absence of a firm indication of legislative intent. People v Wakeford, 418 Mich 95, 113-114; 341 NW2d 68 (1983). As discussed above, we find the legislative intent in the Code of Criminal Procedure unambiguous.
IV. Application to the Facts
We affirm the convictions of Timothy Smith under the habitual-offender statutes, because the two-year misdemeanor convictions which served as the bases for his habitual-offender charges could be considered "felonies” for purposes of the habitual-offender statutes.
We affirm the sentences given to Paul Wallace and David Shoup, because the two-year misdemeanors of which they were convicted could be considered "felonies” for purposes of the probation statute.
Final disposition of Jeffrey Thompson’s claim that consecutive sentences were unlawfully imposed on him must await further consideration of the consecutive sentencing statute, as set forth below. However, we hold that two-year misdemeanors may be considered "felonies” for whatever purposes that word is used in the consecutive sentencing statute. Therefore, Thompson’s sentences may not be vacated on the ground that the two-year misdemeanor to which he pled guilty could not serve as the "felony” with which he had previously been charged.
V. Remaining Issues
People v Smith
Smith contends that his plea-based convictions as an habitual offender must be reversed because the court which accepted the pleas failed to advise him separately on the rights he was waiving by pleading to the habitual-offender charges, and because the court failed to elicit a statement from him that he was pleading guilty to the habitual-offender charges. Our review of the transcript of the plea-taking leads us to conclude that Smith was well informed by the court of the consequences of his guilty plea and that he and his counsel agreed with all aspects of the plea bargain, including the admission of prior convictions. Under these circumstances, reversal is unwarranted.
People v Shoup
Shoup contends that he must be resentenced because the sentencing judge imposed sentence under the mistaken belief that the defendant had a prior felony conviction.
Defendant’s presentence report indicated that he had two prior convictions, one for the misdemeanor of possession of marijuana, and one for the two-year misdemeanor of attempted larceny in a building. Unfortunately, the presentence report referred to the latter conviction as a "felony.” At sentencing, both the prosecutor and the sentencing judge also referred to the defendant’s having a prior felony conviction. Neither defendant nor his counsel challenged the .presentence report or objected to the characterization of the offense as a felony.
The trial court denied defendant’s post-trial motion for reduction of sentence. The court found that defendant had not been prejudiced by the mischaracterization of the offense as a felony, because the court had placed weight on the fact that defendant had only been out of jail a short time before getting into trouble again and had not been influenced by a label placed on the offense.
The Court of Appeals upheld the trial court’s ruling, stating that the sentencing judge knew the true nature of defendant’s convictions and had appropriately considered them before imposing sentence.
The sentencing judge’s exercise of discretion must be based upon accurate information. People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971). Here, the judge was accurately informed that defendant had a prior conviction for attempted larceny in a building, but was inaccurately informed that that offense was a felony. Our review of the transcripts of the sentencing and the post-trial motion leads us to conclude that this misinformation did not affect the severity of the sentence imposed, and hence resentencing is not required.
We should point out that our holding in the primary question presented by these cases should not be construed to mean that a two-year misdemeanor may be considered a "felony” for purposes other than those explicitly considered. In other words, the sentencing judge in this case could not have considered defendant’s prior attempted larceny conviction a "felony” for purposes of determining the appropriate length of sentence to be initially imposed merely because such a conviction could be deemed a "felony” having collateral sentencing consequences under particular statutes within the Code of Criminal Procedure.
People v Thompson
Thompson raises three separate arguments in support of his claim that his sentence must be vacated. The first two arguments concern the interpretation of the consecutive sentencing statute, which provides:
When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere for the subsequent offense, the following shall apply:
(a) The sentences imposed for conviction of the prior charged offense and a subsequent offense, other than a major controlled substance offense, may run consecutively. [MCL 768.7b; MSA 28.1030(2). Emphasis added.]
Thompson’s first argument is that one must be convicted of the particular felony initially charged in one’s first offense in order to receive a consecu tive sentence for a second offense. In support of this argument, Thompson points to language in the statute which calls for conviction of the "prior charged offense” (emphasis added). One panel of the Court of Appeals has upheld this construction of the statute. People v Glenn Jones, 82 Mich App 403, 406-407; 266 NW2d 824 (1978).
Such a reading places undue emphasis upon one word in the statute and ignores others. The statute requires 1) that a person be "charged” with a "felony,” 2) that pending the "disposition of the charge” the person commit a subsequent offense which is a felony, and 3) that the person be eventually convicted of the "prior charged offense.” The word "offense” as used in the third clause is broad enough to encompass more than the specific felony originally charged. The phrase "disposition of the charge” is also broad enough to encompass more than just conviction of the specific felony originally charged. The use of these indefinite terms indicates the Legislature’s intent that consecutive sentencing be available in a variety of circumstances not restrictively defined in the statute. The use of the adjective "charged” in the third clause appears to be superfluous, because one must have been charged in order to be convicted.
The interpretation advocated by defendant would also undermine the purpose of the legislation. This purpose is to deter those charged with one felony from committing another prior to final disposition of the first. Absent such a deterrent, a person could be assured of "one free crime” because of the usual policy of concurrent sentencing. The reading advocated by Thompson disregards the practical necessities of the criminal justice system, because many felony charges must be reduced in the process of plea bargaining. To hold that consecutive sentencing is permissible only when the conviction matches the precise initial charge on the first felony would be to emasculate the statute.
In the instant case, Thompson was initially charged with the felony of arson of personal property over $50. He eventually pled guilty to the two-year misdemeanor of attempted arson of personal property over $50. Under the conclusion reached in part III, a two-year misdemeanor is a felony. For purposes of the Code of Criminal Procedure, the reduced charge constituting the "prior charged offense,” of which Thompson was eventually convicted, was a felony. Thus, we reject Thompson’s first contention.
Thompson’s second question regarding interpretation of the consecutive sentencing statute is whether the disposition of his first charge was still "pending” at the time the second offense was committed.
In the instant case, Thompson had been charged with a felony and had pled guilty to a lesser offense at the time he committed another felony, breaking and entering. However, at the time of the second offense, Thompson had not been sentenced on his plea to the lesser offense and the original felony charge had not been dismissed.
Original charges are frequently retained until after sentencing because of the ease with which a defendant can withdraw a plea prior to sentencing. If we were to hold that a charge did not remain "pending” after a plea to an offense arising out of the first charge, then a defendant such as Thompson could escape consecutive sentencing merely by withdrawing the plea before sentencing, even if he were subsequently to plead guilty to another offense arising out of the first charge.
Such a consequence would thwart the purpose of the consecutive sentencing statute. Therefore we hold that a charge remains "pending” for purposes of this statute until a defendant is sentenced on the conviction arising out of the first offense and until the original charge arising out of the first offense is dismissed. Under this rule, Thompson’s first charge remained pending at the time of his second offense, and therefore consecutive sentencing was appropriate.
Thompson’s third and final contention is that he should be resentenced because the sentencing judge’s conference with the presentence investigator out of the presence of his attorney deprived him of his right to counsel. At sentencing on March 23, 1981, the judge indicated that he would follow the probation department’s recommendation of three years, four months to five years imprisonment. Defense counsel said that the recommendation which had appeared in the presentence report was two years, eight months to five years. The discussion which ensued revealed that the sentencing judge had initiated contact with the probation officer who had prepared the presentence report. The officer had recommended that Thompson be sentenced to the maximum term, but had computed that term erroneously. In the private discussion between the officer and the judge, the error was corrected. Thus, while the sentence Thompson received exceeded that originally stated in the presentence report, it was equal to the maximum term recommended by the probation officer.
A defendant is entitled to assistance of counsel at sentencing because it is a critical stage of criminal proceedings at which substantial rights may be affected. Mempa v Rhay, 389 US 128, 134, 137; 88 S Ct 254; 19 L Ed 2d 336 (1967); People v Johnson, 386 Mich 305, 317; 192 NW2d 482 (1971). The presence of counsel is necessary to correct inaccuracies and to explain information in the presentence report. The danger posed by ex parte communications between sentencing judges and those who write the presentence reports is that the trial judge will receive information about a defendant, and will use it in sentencing, without the defendant having an opportunity to point out inaccuracies or extenuating circumstances.
The United States Supreme Court has recognized the relationship between affording a defendant effective assistance of counsel at sentencing and affording a defendant due process of law at sentencing. In Townsend v Burke, 334 US 736; 68 S Ct 1252; 92 L Ed 1690 (1948), the Court held that the defendant’s sentence was imposed without due process of law because he was not represented by counsel and because the sentencing court had relied on inaccurate information. The United States Supreme Court stated, "It is not the duration or severity of this sentence which renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.” (Emphasis added.) Id., 741. See also People v Lee, 391 Mich 618, 636-637; 218 NW2d 655 (1974), citing Townsend for the proposition that due process considerations may limit the contents of presentence reports.
This Court has implicitly recognized the threat to due process and the effective assistance of counsel posed by inaccurate or incomplete presentence reports. In the years before a defendant was guaranteed the right to review the presentence report, we stated:
It is vitally important to the defendant and to the ends of justice that the sentence be based upon accurate information. The great majority of defendants plead guilty. For those defendants, probation or determination of the length of time they will be in prison are the only significant decisions to be made by the judge. One commentator points out:
"Basic fairness to the accused would seem to require the same opportunity to rebut evidence against him at sentencing as at trial. The stakes at sentencing may be just as high, and the justification for non-disclosure no more, than at the time of guilt determination.” [Emphasis added. People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971) (inaccuracies in presentence report were not so prejudicial as to result in miscarriage of justice).]
More recently, we held that the need for "complete, accurate, and reliable” information at sentencing required the use of a reasonably updated presentence report in sentencing for felonies. People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980).
These decisions preceded significant legislative changes in the employment status of probation officers and in the requirements imposed on judges at sentencing. New legislation bolsters the view that rights of constitutional dimension are at stake when sentencing is undertaken on the basis of inaccurate information.
Judges and probation officers have long enjoyed close working relationships, in part because probation officers were court employees. However, all probation personnel in the circuit courts and Detroit Recorder’s Court became state employees for purposes of supervision and direction on April 1, 1980. MCL 791.223a; MSA 28.2293(1). The Department of Corrections now has the power to appoint, supervise, and remove probation officers. MCL 791.222; MSA 28.2292. An officer within that de partment, the assistant director in charge of probation, supervises the work of probation personnel and promulgates rules to regulate procedures for presentence investigation and reporting. MCL 791.223; MSA 28.2293. The relationship between the probation officer and a defendant or probationer is one of "confidence” which should remain "inviolate.” MCL 791.229; MSA 28.2299.
This statutory scheme suggests that, while judges and probation officers are expected to interact, the probation officer should receive immediate supervision from the Department of Corrections rather than from individual judges. The explicit creation of a confidential relationship between the probation officer and the defendant also suggests that information from the defendant not be passed on to third parties except as prescribed by law.
The statute and administrative rules currently governing presentence investigation reports support this view of the relationship between the defendant, the probation officer, and the trial judge. When Thompson was sentenced in 1981, MCL 771.14; MSA 28.1144 provided:
[T]he probation officer shall inquire into the antecedents, character, and circumstances of the person, and shall report in writing to the court. The presentence investigation report shall include an evaluation of and a prognosis for the person’s adjustment in the community based on factual information contained in the report. The report shall include a specifíc written recommendation for disposition based on the evaluation and other information as prescribed by the assistant director of the department of corrections in charge of probation. [Emphasis added.]
The emphasized phrases anticipate inclusion of all relevant information in a written report.
Regulations in effect in 1981 required presentence investigation reports to include such things as a description of the offense, prior convictions, criminal charges pending, and a personnel profile including educational and employment history, social and medical history, economic circumstances, and "[o]ther information relevant to the offender’s character and circumstances.” 1979 AC, R 791.9910(1). In addition, "A source of information obtained on a promise of confidentiality, as well as a diagnostic opinion which might seriously disrupt a program of rehabilitation, shall be listed separately from the body of the report.” (Emphasis added.) 1979 AC, R 791.9910(2). These rules again envision that all relevant information be imparted to a sentencing judge in written, not oral, form.
In 1982 the presentence investigation statute was amended to enhance the accuracy of presentence investigation reports. In describing the problem to be addressed by the amendments, the House Legislative Analysis echoes the words of this Court in Malkowski:
Because of the importance of an offender’s background in determining the length of his prison term under an indeterminate sentencing scheme and the fact that sentencing hearings, as such, are not held in Michigan, the psi [presentence investigation report] plays a critical role in helping judges to decide on what sentence is appropriate for a particular offender. Indeed, the degree to which judges rely on the psi was indicated by a recent survey, which found that 88 percent of the judges responding placed either "great weight” or "total weight” on the psi in sentencing. . . . The significance, of the psi is further underscored by the fact that approximately 90 percent of those convicted of crimes plead guilty rather than go to trial; in such instances judges do not have impres sions gleaned from observing the defendant and listening to the presentation of evidence at trial.
As amended by 1982 PA 61, MCL 771.14; MSA 28.1144 currently provides:
(3) The court may exempt from disclosure in the presentence investigation report information or a diagnostic opinion which might seriously disrupt a program of rehabilitation or sources of information obtained on a promise of confidentiality. If a part of the presentence investigation report is not disclosed, the court shall state on the record the reasons for its action and inform the defendant and his or her attorney that information has not been disclosed. The action of the court in exempting information from disclosure shall be subject to appellate review. Information or a diagnostic opinion exempted from disclosure pursuant to this subsection shall be specifically noted in the presentence investigation report.
(4) The court shall permit the prosecutor, the defendant’s attorney, and the defendant to review the presentence investigation report prior to sentencing.
(5) At the time of sentencing, either party may challenge, on the record, the accuracy or relevancy of any information contained in the presentence investigation report. The court may order an adjournment to permit the parties to prepare a challenge or a response to a challenge. If the court finds that the challenged information is inaccurate or irrelevant, that finding shall be made a part of the record and the presentence investigation report shall be amended and the inaccurate or irrelevant information shall be stricken accordingly before the report is transmitted to the department of corrections.
See also MCR 6.101(K).
The statute has been designed to ensure to the greatest extent possible that written records reflect the information on which a judge relies in making the sentencing decision and that the defendant or defense counsel has access to those written records. Criminal defendants are, no doubt, highly dependent upon their attorneys to gain access to these records and to explain inaccuracies or extenuating circumstances making the information unreliable. Ex parte communications between probation officers and judges, whether in written or oral form, threaten the ability of counsel to effectively challenge unreliable information and hence threaten a defendant’s right to counsel.
We recognize that probation officers are an extremely valuable resource to judges, and do not seek to discourage what is accepted as healthy, general discourse between judges and probation officers. We seek, instead, to fashion a rule that will ensure that courts have the most accurate information possible when they undertake sentencing and that will not erode a defendant’s right to counsel.
Different panels of the Court of Appeals have reached different conclusions about the standard to be applied in determining whether an ex parte communication between a sentencing judge and a probation officer violates a defendant’s right to counsel. See People v Oliver, 90 Mich App 144, 149-150; 282 NW2d 262 (1979), rev’d on other grounds 407 Mich 857; 283 NW2d 502 (1979) (resentencing required where the trial court obtains information about defendant which is not equally available to defendant’s counsel); People v Black, 103 Mich App 109, 115; 302 NW2d 612 (1981) (resentencing required whenever the sentencing judge communicates with the probation officer ex parte); People v Beal, 104 Mich App 159, 167; 304 NW2d 513 (1981) (following the rule in Oliver); People v Crawford, 115 Mich App 516; 321 NW2d 717 (1982) (interpreting Black as creating a rebut-table presumption of prejudice when an ex parte communication occurs).
We are persuaded that resentencing is only necessary when the sentencing judge obtains information about the defendant from the probation officer that is not included in the written presentence report. A rule which presumes prejudice per se from the fact of communication is unnecessarily restrictive and would not tie the standard to the harm sought to be prevented. However, requiring defendant to prove actual prejudice in addition to proving the incompleteness of the presentence report would be too onerous a burden to place upon the exercise of the right to counsel. Requiring resentencing only where information communicated was not "available” to counsel does not confront the problem of notice. The fact that information is available to counsel does not mean that counsel is aware that the sentencing judge will rely on it in the sentencing decision. Unless all information used to sentence a defendant is included in the written presentence report, counsel has no opportunity to represent a defendant effectively.
The sentencing judge in this case did not obtain information about defendant Thompson which did not appear in the presentence report. The information exchanged between the judge and the probation officer concerned the disparity between the purported recommendation of a "maximum” term and the mathematical computation of that term. Resentencing is unnecessary under such circumstances.
VI. Conclusion
For all the reasons above, we affirm the convic tions of and sentences received by all four defendants.
Levin and Cavanagh, JJ., concurred with Williams, C.J.
See, e.g., MCL 771.14; MSA 28.1144, which makes a presentence investigation and report a matter of right for those accused of a felony and a matter within the court’s discretion for those accused of a misdemeanor.
Also compare the differing treatment afforded those arrested for felonies and those arrested for "minor offenses,” a class of "misdemeanors” and ordinance violations for which the maximum permissible imprisonment does not exceed ninety-two days and the maximum permissible fine does not exceed $500. MCL 761. l(k); MSA 28.843(k).
In contrast with those arrested for felonies, a person arrested for a minor offense need not be taken immediately before a magistrate, and a complaint need not be immediately presented to a magistrate. Cf. MCL 764.9c; MSA 28.868(3), with MCL 764.13; MSA 28.871(1). Public servants other than peace officers can be authorized to serve appearance tickets for certain offenses of less than felony grade. MCL 764.9c; MSA 28.868(3). An examining magistrate can accept a plea of guilty or not guilty for certain minor offenses for which an appearance ticket has been issued without the necessity of a sworn complaint. MCL 764.9g; MSA 28.868(7). Finally, while most complaints must be sworn to before a magistrate or clerk, MCL 764.1a; MSA 28.860(1), for certain minor offenses the complaint is simply treated as having been made under oath if it contains a declaration that the statements are true upon information and belief above the date and signature of a peace officer. MCL 764.1e; MSA 28.860(5).
Defendants argue that this reading renders meaningless the "misdemeanor” label found in the Penal Code, contrary to our responsibility to give effect to all words and provisions, if possible. However, the "misdemeanor” label does have some consequences. The social stigma attached to a misdemeanor conviction is less than that which attaches to a felony conviction. We also note that our constitution disqualifies anyone who "has within the preceding 20 years been convicted of a felony involving a breach of public trust” from service in the Legislature. Const 1963, art 4, § 7. We suggest, without deciding here, that one convicted of a misdemeanor involving a breach of the public trust might not be disqualified from service. Thus, it cannot be said that our reading of the Code of Criminal Procedure renders the "misdemeanor” designation in the Penal Code totally meaningless.
Defendants also argue that our reading of the Code of Criminal Procedure makes redundant certain language in the habitual-offender statutes. Those statutes provide that one who is convicted of "a felony, an attempt to commit a felony, or both,” and who subsequently commits another felony, is subject to sentence enhancement. MCL 769.10-769.12; MSA 28.1082-28.1084. (Emphasis added.) The Penal Code designates an attempt to commit an offense punishable by less than five years in the state prison, by imprisonment in the county jail, or by fine, a two-year misdemeanor. MCL 750.92(3); MSA 28.287(3). Defendants argue that if a two-year misdemeanor "attempt” is by definition already a "felony,” then the "attempt to commit felonies” language in the habitual-offender statutes is redundant. See People v Reuttier, supra, pp 357-358 (Bronson, J., concurring in part and dissenting in part).
However, this minor redundancy does not persuade us that the Legislature intended to except two-year misdemeanors from the definition of "felony” in the Code of Criminal Procedure. Other rules of statutory construction point persuasively toward the opposite conclusion. In addition, defendants have failed to recognize that the definitions in each code have full meaning for all the purposes of that code, but are not simply transferable to the other code. The reading advocated by defendants might render meaningless the Code of Criminal Procedure’s clear definition of "felony.” | [
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Williams, C.J.
This case involves a determination of the accuracy of jury instructions given on the issue of intent in a prosecution of felony murder and aiding and abetting the murder. Specifically, the first issue revolves around the following sentence: "If you find that the defendant consciously intended to commit, attempted to commit or assisted another in the crime of robbery, you may infer that he knowingly created a very high risk of death with knowledge that it probably would cause death.” (Emphasis added.) While this sentence in isolation may be inaccurate, the instructions in their entirety correctly state the law.
The second issue involves a portion of the instructions given on the aiding and abetting charge which was not objected to in the trial court. We apply the standard of review for unpreserved objections and find that no manifest injustice occurred. We offer no opinion as to the result if this issue had been properly preserved.
The appeal raises two additional issues: (1) whether the trial court committed error requiring reversal by allowing the introduction of a rebuttal witness to testify about an issue raised by the defense and elaborated upon by the prosecutor in cross-examination; and (2) whether the trial court abused its discretion by allowing evidence of the defendant’s three prior convictions to be used for impeachment purposes. We answer each of these issues in the negative, and we therefore affirm the defendant’s conviction.
I. Facts
On the evening of July 18, 1980, Willie Espy, Sr., was found dead on the floor of his house with his hands tied behind his back and a large wound, made by several cuts with a sharp instrument, on the side of his neck. The house had been ransacked, and among the items missing were a large television set and a rifle.
The defendant, Jerome Kelly, and Lawrence Moses, were linked to the killing by witnesses who saw them approaching the house, signaling to each other before entering the house, carrying a rifle and a large knife towards the house, and running from the direction of the decedent’s house with a rifle and a large knife wrapped in a bloodied sheet. They were also seen loading a television set into a van parked a short distance from the Espy residence.
The defendant admitted to helping Moses remove the television set from the decedent’s property and to having bloodstains on his pants, but denied any involvement in the killing.
The prosecution proceeded on one of two theories at trial: (1) that the defendant was guilty of first-degree felony murder, or (2) that the defendant aided and abetted the felony murder. Consistent with this, the jury instructions specified the elements of each theory as well as the broader requirements with respect to burdens of proof and the presumption of innocence. The relevant portions of the instructions follow:
Now the defendant in this case is charged with murder in the first degree — felony murder. The essential element of aU murder is malice. Now malice is a term with a special meaning in the law. Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that his act would probably result in death.
Now there are two degrees of murder, and if you find that defendant is guilty of murder, it is your duty to state in your verdict whether the defendant is guilty of murder of the first degree or murder of the second degree. For murder of the first degree there must be proof beyond a reasonable doubt that the killing occurred as a result of the crime of robbery and that the defendant was at the time engaged in committing, attempting to commit or aiding another in the commission of that crime.
As I have told you before, there are two kinds of murder, first and second degree, and I will instruct you as to both. Now, murder of either degree, as I have told you before, is the killing of one person by another with malice. Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse or mitigate the crime.
You will first be instructed on murder of the second degree. Keep in mind that all of the elements of second degree murder are necessary to prove first degree murder.
Second, that his death was caused by an act of the defendant or because the defendant consciously created a very high risk of death to another with knowledge that it probably would cause death.
Fourth, for murder you must ñnd that the defendant consciously and knowingly performed the act which caused death. The defendant must have either intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.
If you find that the defendant consciously INTENDED TO COMMIT, ATTEMPTED TO COMMIT OR ASSISTED ANOTHER IN THE CRIME OF ROBBERY, YOU MAY INFER THAT HE KNOWINGLY CREATED A VERY HIGH RISK OF DEATH WITH KNOWLEDGE THAT IT PROBABLY WOULD CAUSE DEATH.
Now, you may also gain some insight into the intent with which an act is done by the way in which it is done.
Now, a gun is a dangerous weapon. There are some instruments which are dangerous because they are specifically so designed and are in themselves deadly, such as firearms, knives or bombs. Now, other instruments, though designed for peaceful and proper purposes, also may be dangerous weapons. The manner in which an instrument is used or intended to be used in an assault determines whether or not it is a dangerous weapon. If an instrument is used in a manner reasonably calculated and likely to produce serious physical injury or death, it is a dangerous weapon. You may infer an intention to kill from the use of a dangerous weapon when it is used in a manner that the death of the person was plainly likely. Now, you may infer that a person intends the usual results which follows from the use of a dangerous weapon.
Now, you must consider all of the facts and circumstances in determining the state of mind of the defendant at the time of the act. This may be inferred from the kind of weapon used, the nature of the wounds indicted, the circumstances surrounding the killing, the acts, conduct and language of the accused or any other circumstance in evidence.
In determining whether a person who has killed another is guilty of murder, the nature and extent of the injury or wrong which was actually intended must usually be of controlling importance. There cannot be a conviction of murder unless the injury intended was one of a very serious character which might naturally and commonly involve loss of life or grievous mischief.
If all of the evidence does not convince you beyond a reasonable doubt that the defendant either intended to kill or consciously created a high risk of death with knowledge of the probable consequences, then you must ñnd the defendant not guilty of this crime.
Now, the degree for murder must be so reckless and wrongful as to amount to a criminal purpose aimed against a person’s life, and the defendant must have been conscious of that risk.
Now, it is the theory of the prosecution in this case that the defendant either directly committed the crime charged, that being felony murder, or that he intentionally aided or assisted another in the commission of that crime.
All persons who aid or assist in the commission of a crime are as liable as if they had directly committed the crime and may be convicted of the principal offense or as aiders and abettors. Before you may convict you must be convinced beyond a reasonable doubt.
First, that the defendant intended to commit the crime of robbery, either robbery unarmed or robbery armed at the time of giving the aid or encouragement.
Second, that the defendant performed acts or gave encouragement which aided or assisted the commission of the crime of robbery either before or at the time of the commission of the crime.
Third, that the crime of felony murder occurred as a result of this robbery.
Fourth, that this crime which occurred, that IS THE. FELONY MURDER, WAS FAIRLY WITHIN THE CRIMINAL PLAN AND THE DEFENDANT MIGHT HAVE EXPECTED THIS TO HAPPEN IN THE COURSE OF COMMITTING the robbery. [Emphasis added.]
During trial, defense counsel objected to that portion of the instruction involving the malice requirement of felony murder (first portion of the instructions in capitals above), but did not object to the instructions given with respect to aiding and abetting (second portion of the instructions in capitals above). The jury convicted Kelly of felony murder, MCL 750.316; MSA 28.548, and he was sentenced to the mandatory life imprisonment. The Court of Appeals affirmed the conviction on March 11, 1983, in an unpublished decision. We granted leave to appeal, instructing the parties to "include among the issues to be briefed whether the trial court’s instructions were erroneous in permitting a conviction of felony murder on an aiding and abetting theory without a finding that defendant possessed an intent to murder, People v Aaron, 409 Mich 672 [299 NW2d 304] (1980).” 419 Mich 922 (1984).
II. Applicable Law With Respect to Jury Instructions
A. Jury Instructions Should Be Reviewed in Their Entirety
In People v Dye, 356 Mich 271, 279; 96 NW2d 788 (1959), cert den 361 US 935 (1960), we enunciated the standard under which we review jury instructions. We stated that it was improper for the appellant to extract
several short excerpts from the entire context of the charge and discuss[ed] their claimed inadequacies at great length. Jury instructions in a criminal case . . . must be read in their entirety.
See, also, People v Dupie, 395 Mich 483, 488-489; 236 NW2d 494 (1975). Numerous Court of Appeals decisions have also quite properly focused on the totality of the instructions given. See, e.g., People v Ritsema, 105 Mich App 602, 609-610; 307 NW2d 380 (1981); People v Bailey, 103 Mich App 619, 626; 302 NW2d 924 (1981); People v Choate, 88 Mich App 40, 45; 276 NW2d 862 (1979).
The Supreme Court of the United States has similarly stated:
In determining the effect of this instruction on the validity of respondent’s conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v United States, 271 US 104, 107 [46 S Ct 442; 70 L Ed 857] (1926). . . . [A] judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction. . . . [T]he question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. [Cupp v Naughten, 414 US 141, 146-147; 94 S Ct 396; 38 L Ed 2d 368 (1973).]
See, also, United States v LaRiche, 549 F2d 1088, 1093-1094 (CA 6, 1977), cert den 434 US 966 (1977) (quoting Cupp for the proposition that particular instructions must be viewed within the context of the entire charge).
B. Review of Unobjected-to Errors
This Court has stated that "instructional error should not be considered on appeal unless the issue has been preserved by an objection to the instruction in the trial court.” People v Handley, 415 Mich 356, 360; 329 NW2d 710 (1982). Relief will be granted absent an objection only in cases of manifest injustice. See, e.g., People v Woods, 416 Mich 581, 610; 331 NW2d 707 (1982); People v Rand, 397 Mich 638, 643; 247 NW2d 508 (1976); People v Townes, 391 Mich 578, 586; 218 NW2d 136 (1974). The United States Supreme Court has enunciated a similar test. It stated that "[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v Kibbe, 431 US 145, 154; 97 S Ct 1730; 52 L Ed 2d 203 (1976). Relief will be given only when necessary to avoid manifest injustice to the defendant.
III. Application of the Law to the Instructions
A. Felony-Murder Instructions
In People v Aaron, 409 Mich 672, 728; 299 NW2d 304 (1980), this Court held that
malice is the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural ten dency of defendant’s behavior is to cause death or great bodily harm. We further hold that malice is an essential element of any murder . . . whether the murder occurs in the course of a felony or otherwise.
We therefore decided that the malice necessary for a felony-murder conviction could not be inferred merely from the intent to commit the underlying felony. However, we went on to state:
The facts and circumstances involved in the perpetration of a felony may evidence an intent to kill, an intent to cause great bodily harm, or a wanton and willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm; however, the conclusion must be left to the jury to infer from all the evidence. [Emphasis added. Id., pp 728-729.]
Read in their entirety, the jury instructions at issue clearly do not require the jury to find the malice necessary for murder from the mere intention to commit the underlying felony. The felony is a factor the jury may use to find malice.
The defendant objects to the felony-murder instructions because the court at one point stated:
If you find that the defendant consciously intended to commit, attempted to commit or assisted another in the crime of robbery, you may infer that he knowingly created a very high risk of death with knowledge that it probably would cause death.[ ]
This particular instruction was preceded by explicit and correct definitions of malice. (See the italicized portions of the charge ante, pp 266-269.) The court stated:
The essential element of all murder is malice. . . . Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that his act would probably result in death.
An elaboration of this definition followed:
Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse or mitigate the crime.
A correct definition of malice was then given for a third time in the paragraph immediately preceding the one in which the language objected to was used. More importantly, the court clarified any ambiguity in the instruction objected to by explicitly noting in the proximately following paragraphs the factors the jury had to consider in order to find malice. Specifically, the following instruction was given:
[Y]ou must consider all of the facts and circumstances in determining the state of mind of the defendant at the time of the act. This may be inferred from the kind of weapon used, the nature of the wounds inflicted, the circumstances surrounding the killing, the acts, conduct and language of the accused or any other circumstances in evidence. [Emphasis added.]
Our responsibility as a reviewing court is to balance the general correct, clear tenor of the instructions in their entirety against the potentially misleading effect of a single sentence isolated by the defendant. Dye, 356 Mich 279; Dupie, 395 Mich 488-489. In doing so, we find that the instructions, as a whole, correctly informed the jury of the Aaron standard governing malice in felony murder and do not require the jury to have determined such malice only on the basis of the intent to commit the underlying felony.
We are also aware that the trial judge was cognizant of the implications of Aaron. The court stated:
Aaron says specifically that the jury may infer malice from the very thing you are objecting to [the facts of the underlying felony] and all of the facts and circumstances ....
A correct understanding of the applicable standard by the trial court further supports our belief that the instructions given were accurate.
Where instructions on malice in other cases were found to be incorrect, the inference of malice was made an automatic result once the intent to commit the underlying felony was found. (By contrast, the case before us raises at most a possible inference.) In People v Thompson, decided jointly with Aaron, the jury was instructed that if "the said defendant was perpetrating or attempting to perpetrate said assault upon the deceased, Mary Emma Hendry, with intent to rob, then it is not necessary for the state to prove a premeditated design or intent.” The judge further explained that even though there was no intent to injure anyone, "the evil intent to commit the robbery carries over to make that crime murder in the first degree under the law in this state.” Aaron, 409 Mich 687, n 3. In People v Wright, also decided with Aaron, the jury was instructed:
For murder of the first degree there must be proof beyond a reasonable doubt that the killing occurred as a result of the crime of arson and that the defendant was at the time engaged in committing or attempting to commit, or was aiding another in the commission of that crime. [Aaron, 409 Mich 688, n 5.]
In Aaron itself, the instruction authorized the jury to convict the defendant of first-degree murder "if they found that defendant killed the victim during the commission or attempted commission of an armed robbery.” Aaron, 409 Mich 688. In People v Wilder, 411 Mich 328; 308 NW2d 112 (1981), the instructions were given as follows:
Now I know you have heard of a premeditated killing. We are not concerned with that in this case, because the law supplies the premeditation and the deliberation if a person is killed in the perpetration of a robbery, or the attempted] perpetration of a robbery. The prosecution does not have to prove premeditation and deliberation, it is automatically supplied because the law says that, if a person is killed in the perpetration or attempted] perpetration of a robbery that is first-degree murder, felony. But you must be satisfied beyond a reasonable doubt that there was a robbery or the attempted] perpetration of a robbery committed by these defendants, not by somebody else. And that’s important. The prosecution must prove that they committed that act or attempted to commit that act of robbery and during that Mr. Reaves was killed. [Emphasis added. Wilder, 411 Mich 340-341.]
In the case now before us there is no similar mandatory language.
B. The Aiding and Abetting Instructions
The aiding and abetting instructions given in this instance were not objected to at trial; therefore, the appropriate standard of review is whether manifest injustice has occurred. Woods, 416 Mich 610. While the instruction given on this issue was arguably erroneous, after a careful review of the record, we find no evidence of injustice.
The defendant argues that the aiding and abetting instructions given allowed the jury to convict him of felony murder on an aiding and abetting theory without explicitly requiring the jury to make a determination of his intent to aid and abet the murder. The language under point four provides as follows:
[T]hat this crime which occurred, that is the felony murder, was fairly within the criminal plan and the defendant might have expected this to happen in the course of committing the robbery.
The defendant reads this as permitting the jury to apply an objective standard of foreseeability on the issue of intent. He concludes that conviction under this language violates the Aaron requirement that malice on the part of the defendant be found before any killing can be deemed "murder.”
Before discussing the defendant’s contention further, it is necessary to understand the elements of an aiding and abetting charge in Michigan. The Michigan statute, MCL 767.39; MSA 28.979, provides:
Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.
The requisite intent is that necessary to be convicted of the crime as a principal. Meister v People, 31 Mich 99 (1875). In this instance, under Aaron, it therefore must be shown that the aider and abettor had the intent to kill, the intent to cause great bodily harm or wantonly and willfully disregarded the likelihood of the natural tendency of his behavior to cause death or great bodily harm. Aaron, 409 Mich 733. Further, if the aider and abettor participates in a crime with knowledge of his principal’s intent to kill or to cause great bodily harm, he is acting with "wanton and willful disregard” sufficient to support a finding of malice under Aaron. This result is in accord with numerous decisions reached by the Court of Appeals over a considerable period of time. See, e.g., People v Schaffer, 129 Mich App 287, 291; 341 NW2d 507 (1983); People v Turner, 125 Mich App 8, 11; 336 NW2d 217 (1983); People v Davenport, 122 Mich App 159, 164; 332 NW2d 443 (1982); People v Harris, 110 Mich App 636, 643; 313 NW2d 354 (1981); People v Wilbert, 105 Mich App 631, 640; 307 NW2d 388 (1981); People v Wirth, 87 Mich App 41, 46; 273 NW2d 104 (1978); People v Poplar, 20 Mich App 132, 136; 173 NW2d 732 (1969).
The Aaron concerns are not implicated by this standard. In Aaron, we expressed concern for co-felons who, under the old felony-murder rule became involved in an unforeseen and unagreed-to murder. Aaron, 409 Mich 731. We stated:
In the past, the felony-murder rule has been employed where unforeseen or accidental deaths occur and where the state seeks to prove vicarious liability of co-felons. In situations involving the vicarious liability of co-felons, the individual liability of each felon must be shown. It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen and unagreed-to results of another felon.
This concern is not implicated by an aiding and abetting standard which requires a finding that the co-felon acted with malice. We do not address the defendant’s contention that the actual instruction given does not require this level of intent to be found because the objection was not properly preserved. We review in this instance only to determine whether the defendant was subject to a manifest injustice.
Because the intent necessary for an aiding and abetting conviction is so overwhelmingly evident from the record, we find that no injustice has occurred. The entire criminal enterprise, including the robbery and the killing, was cooperative in nature. Eyewitness testimony established that Kelly and Moses signaled to each other prior to entering the house, headed in the direction of the house with a rifle and a knife, and left the house with a rifle and a knife wrapped in a bloodied sheet. They were observed loading a television set into a van. There was also testimony by a witness that Kelly had told him that he (Kelly) pushed Espy down while Moses tied him up. The defendant admitted having blood on his pants. The nature of the killing itself clearly demonstrates that it was neither accidental nor done without malice. The victim’s hands were tied behind his back, and his throat was slit a number of times. Even assuming the defendant did not enter the house with the intent to murder, it is clear that he either formulated such an intent once inside the house, or at the very least became aware of his codefendant’s specific intent at some point during these gruesome proceedings.
Defendant’s testimony was contradicted by the witnesses and unsupported by the evidence. He stated that he was walking down the street when Moses threw a rifle to him and he followed with no knowledge of what was happening. He did, however, admit to agreeing to steal the television set, and, on cross-examination, to entering the victim’s enclosed porch.
In reviewing the record for evidence of manifest injustice to the defendant, we find none. Instead, we find the evidence of intent necessary to support an aiding and abetting conviction so overwhelming that even if the instructions are considered ambiguous no injustice is done to the defendant by allowing his conviction to stand.
IV. The Admissibility of Rebuttal Evidence
We find no merit in the defendant’s assertion that the trial court exceeded the bounds of its discretion when it admitted the testimony of William Lester Espy, Jr., in rebuttal. We note as an initial matter that a specific objection to the admissibility of this testimony as improper rebuttal was not made at trial. We therefore review only to determine whether the defendant was subject to manifest injustice as a result of admitting the evidence. Not only do we find no such injustice, we find the testimony was properly admitted.
Rebuttal testimony may be used to "contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same.” People v DeLano, 318 Mich 557, 570; 28 NW2d 909 (1947), cert den 334 US 818 (1948), quoting People v Utter, 217 Mich 74, 83; 185 NW 830 (1921). In this instance, the defendant’s prior contact with the decedent and his son was brought up during direct examination by the defense. Further, the defendant testified on direct examination that he had gone to the Espys’ house that evening to see if Willie Espy, Jr., was at home. It is clear that this placed the relationship between the defendant and the Espys at issue. The prosecution’s rebuttal evidence was therefore properly admitted.
V. Admissibility of Past Convictions to Impeach the Defendant
The defendant’s contention that the trial court abused its discretion in allowing the prosecution to bring in evidence of his past convictions for attempted larceny in a building, attempted robbery, and larceny is clearly erroneous. The defendant challenged the admissibility of the prior convictions by arguing that they did not clearly bear on the issue of credibility, that their effect on the jury would be too prejudicial, and that their admission might cause him to refrain from taking the stand.
MRE 609(a)(2) provides that evidence of such convictions are admissible if "the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.” The trial court exercised its discretion and enunciated its reasons for allowing evidence of the prior convictions on the record. The court considered the defendant’s motion to suppress the prior convictions twice. The first time, on a motion in limine on September 23, 1980, the court stated:
... I would allow the prosecution to use the conviction for attempt [sic] larceny in a building whether he wishes to or not, attempt [sic] robbery unarmed and larceny from a person. The credibility is important, and this is not so prejudicial as to outweigh the probative value.
When the motion was raised again, the court stated:
It becomes very obvious from what counsel has said that credibility is going to be an important factor in this case. ... I know what the rule is and know that similar crimes ought not to be admitted when they will be so prejudicial that probative value becomes very small. In this particular incident, I’m convinced that the probative value outweighs the prejudicial effect. These are larcenous kinds of crimes. As I remember, there are a couple of felonies, all larcenies, and it goes directly to credibility and therefore, I deny the motion.
The trial court’s decision was made after consideration of the relevant factors. See, e.g., People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979); People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). The court determined that evidence of the prior convictions was extremely relevant with respect to the defendant’s credibility and that any potential similarity between the earlier convictions and the current case was outweighed by this probative value. The similarity of past crimes to the current case was further diminished because the defendant in effect admitted he had removed the television set, and the real issue was not the underlying theft, but his involvement in the murder. Most importantly, the defendant took the stand, thus obviating any fear that the use of the convictions for impeachment purposes might result in his refusal to testify.
We therefore determine that the admission of evidence of the prior convictions was certainly within the bounds of the trial court’s discretion, and the defendant’s contention otherwise is merit-less.
VI. Conclusion
The felony-murder instructions of the trial court accurately stated the law with respect to malice when read in their entirety. Any imperfection in the instructions given with respect to the intent necessary to be convicted of aiding and abetting a felony murder did not result in manifest injustice. The court, in allowing rebuttal evidence by the prosecutor and the use of evidence of the defendant’s prior convictions for impeachment purposes, properly exercised its discretion.
For all the foregoing reasons, we uphold the felony-murder conviction of Jerome Kelly.
Ryan, Brickley, Cavanagh, Boyle, and Riley, JJ., concurred with Williams, C.J.
Lawrence Moses was convicted separately of felony murder sifter Kelly, and was sentenced to life imprisonment.
"Mr. Binion: Your Honor, defense would like to object to the instruction 16, I believe, 2:03 at page 1671, your Honor, which is on the inference of malice. It is our contention, your Honor, that the case of People versus Aaron, recently decided, your Honor, by the Michigan Supreme Court and appears at 409 Mich Reports, page 672 [299 NW2d 304 (1980)]. I think, your Honor, that the import of the Aaron Decision is that inferences such as the one I think that this instruction involves, that is, that the mere participation in any aspect of the underlying felony. In this case I guess it would be any aspect from any kind of larceny. From that you can infer that the person had malice. I don’t think your Honor, that that is what the Aaron Case permits. I would object to that particular instruction, your Honor. I think it is clear that our case law shows that if there is a conflict between the Michigan Criminal Jury Instructions and the case law, that it is the case law, your Honor, which is the determining factor.
"I would ask the Court to follow the case of People versus Aaron, your Honor, and note the conflict between the two and not give that particular instruction to the jury. I think it is going to confuse the jury, your Honor, and it is going to permit the jury to infer malice from my client, from his small involvement.
"The Court: The instruction, the language that you are talking about comes almost directly from Aaron. As a matter of fact, Aaron says specifically that the jury may infer malice from the very thing you are objecting to and all of the facts and circumstances, and therefore, I am including it in the instruction. Anything else?”
The following are examples of such injustice. See, e.g., Townes, 391 Mich 578, 588; 218 NW2d 136 (in which the court effectively removed one possible verdict from the jury’s consideration); People v Martin, 392 Mich 553, 561; 221 NW2d 336 (1974), and People v Allensworth, 401 Mich 67, 70-71; 257 NW2d 81 (1977), cert den 435 US 933 (1978) (cases in which the court ruled as a matter of law on an element of the offense); People v Liggett, 378 Mich 706, 715; 148 NW2d 784 (1967) (judge repeatedly misidentified the joint defendants); People v Lenkevich, 394 Mich 117, 124; 229 NW2d 298 (1975) (court repeatedly misdefined self-defense in a murder trial).
This language clearly does not involve a burden-shifting presumption or a conclusive presumption. At most, the instructions can be read to raise a permissive inference. The United States Supreme Court in its most recent discussion of this distinction has stated:
"The court must determine whether the challenged portion of the instruction creates a mandatory presumption. ... A mandatory pre sumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.
"Mandatory presumptions must be measured against the standards of [In re] Winship [397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970)] as elucidated in Sandstrom [v Montana, 442 US 510; 99 S Ct 2450; 61 L Ed 2d 39 (1979)]. Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense. ... A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proven. Such inferences do not necessarily implicate the concerns of Sandstrom. A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.” (Citations omitted.) Francis v Franklin, 471 US 307; 105 S Ct 1965; 85 L Ed 2d 344, 353-354 (1985).
The Court of Appeals has reached a similar conclusion on the issue of malice, based on a reading of the instructions at issue in their entirety. People v Ewing (On Remand), 102 Mich App 81, 86; 300 NW2d 742 (1980). We note further that to the extent the jury found Kelly was the principal actor, given the circumstances of the murder, there was no question that the killer himself acted with malice. The only issue was whether Kelly was the principal.
It is noted that in the order granting leave to appeal we stated the issue as "whether the trial court’s instructions were erroneous in permitting a conviction of felony murder on an aiding and abetting theory without a finding that defendant possessed an intent to murder.” As Aaron indicates, the malice necessary to support a murder conviction can be found by a "wanton and willful disregard of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm.” Therefore it is clear that the Aaron rule is broader than our question implies.
We find the defendant’s reliance on the following cases to be misplaced. People v Bennett, 393 Mich 445, 449; 224 NW2d 840 (1975) (rebuttal evidence did not bear on an issue raised by the defense); People v Losey, 413 Mich 346, 351-353; 320 NW2d 49 (1982) (evidence involved either a collateral matter of material which should have been in the prosecution’s case in chief); People v Teague, 411 Mich 562, 566; 309 NW2d 530 (1981) (evidence was on a collateral matter).
"Rule 609. Impeachment by Evidence of Conviction of Crime
"(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.
"(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.” | [
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Brickley, J.
This breach of contract action involving a 1976 thirty-nine percent water rate increase levied by the City of Detroit on ninety-five municipal customers outside the city requires us to pass on the method of determining whether the rates in question are "reasonable in relation to the costs incurred” and to consider the appropriate burden of proof and the standard of review to be applied to such a determination of reasonableness.
We conclude that MCL 123.141; MSA 5.2581 does not provide the only standard of reasonableness to be applied. In addition, we conclude that the Court of Appeals erred in finding that the so-called "cost of capital” method of determining the rate of return component of the water rate was necessary to establish a reasonable rate, in that such method is not required as a matter of law and the plaintiffs did not establish an evidentiary basis for such an analysis at trial. Finally, we find that the trial court properly placed the burden of proof on the plaintiffs to establish that the rates in question were unreasonable and properly found that the plaintiffs had not met that burden.
Background
Pursuant to the applicable constitutional, statu tory, and charter provisions, the City of Detroit, through its Water and Sewerage Department (hereinafter dwsd), sells water at retail to its own citizens and at wholesale to some ninety-five sur rounding political subdivisions. As these communities became Detroit water customers over the years, most signed contracts that provide, as does the contract with the plaintiff City of Plymouth, that
[t]he City [of Plymouth] agrees to pay for all water supplied by the Board at such rates as the Board may establish from time to time, it being mutually understood that such rates shall always be reasonable in relation to the costs incurred by the Board for the supply of water.
In December, 1975, the dwsd recommended to the Detroit City Council that it raise the rates of all rate schedules to all customers by thirty-nine percent, effective May 1, 1976, and continuing through the 1980-1981 fiscal year. In support of this increase, the dwsd issued a report in which it was noted that since the last increase in 1972, the cost of operation and maintenance had risen forty-three percent. This increase was due in large measure to a higher than usual inflationary spiral. The increase was also premised on increased debt reserve requirements and a five-year capital improvement program approximately seventy-five percent of which would be financed out of operating revenue.
It was basically a projection of those factors that led the city to estimate that it needed increased revenue in an amount equal to a thirty-nine percent across-the-board increase. There has been no challenge to these basic assumptions, and, in fact, there was general agreement by the parties that the projection of new revenue needs was conservative.
However, the parties are not in agreement over the allocation of the needed revenue between the resident customers and the plaintiff customers. In 1966, a study by a nationally known utility rate consulting firm, using the so-called "utility basis” method for allocating cost among customers, recommended a 10.1 percent increase in city rates and an 18.4 percent rate increase in out-city rates. Rather than follow the disparity rate allocation recommended in the 1966 rate allocation study, however, the city granted an across-the-board fifteen percent increase in 1967. The next increase in 1972 was a flat twenty-three cent per unit across-the-board increase. Thus, since 1966, there have been, including the instant increase, three across-the-board increases, despite a recommended shifting of costs from Detroit users to out-city users.
The dwsd, in recommending this increase, evidently did not feel that there was a need for a reallocation of the cost of the system between the resident and out-city users. The staff report to the city council indicated that such an allocation study would take twelve to fourteen months and cost in excess of $125,000.
In May, 1976, the city council adopted the recommended five-year thirty-nine percent increase. Within two weeks, the plaintiffs commenced this suit for breach of contract. The plaintiffs claimed that the new rates were "unreasonable, arbitrary and capricious and without proper foundation in fact or theory in that they do not clearly and adequately reflect a reasonable relationship of the costs incurred by the City of Detroit for the supply and distribution of water services to Plaintiffs, and . . . unreasonably discriminate between the rates charged the Plaintiffs . . . and the rates charged by the City of Detroit to [its users].” The complaint included two other counts: unjust enrichment based on unreasonably high rates of return on investment and violation of a provision of the Detroit City Charter requiring "equitable rates.”
From the outset, the trial was focused on the plaintiffs’ argument that a "differential” rate of return is improper. Plaintiffs’ claim, essentially not denied by the city, is that a breakdown of the costs of furnishing water to the plaintiffs vis-á-vis the city users shows the latter paying a negative rate of return on investment while the plaintiff users are paying approximately a nine percent rate of return.
Although the issues in this case center on the rate-making of a municipally owned utility, many of the principles applicable in the private utility context are relevant here. The following comments by the trial court provide helpful background information regarding the rate-making process in Detroit.
Rate-making procedures in Detroit have been similar historically to those of other cities, until recently having been carried out by department personnel according to their projections of demand and revenue needs, and without much reference to increasingly technical rate-making procedures employed in private enterprise utilities where considerations of owner investment and profit, and state regulations were involved. But the basic purposes of rate-making, (1) to provide enough revenue to meet costs, and (2) to structure rates to differing uses, are the same for both publicly and privately owned utilities. In the past 40 years, a host of economic, technological and demographic changes have complicated the accomplishment of both purposes, and minimized the differences between the rate-making procedures of publicly-owned and privately-owned utilities. It is not surprising, then, that both municipal utilities and their customers have utilized the services of engineering and financial consultants who have become expert in the art of utility rate-making.
In the early rate-making process, the first step of estimating the revenues needed to meet costs was the "cash basis” method which involved a projection of the cash needs of the utility for a given period, i.e., the dollars needed to pay the expense of operation, meet debt obligations, and make such capital improvements as would not require bond financing, e.g., limited new plant construction, plus recurring replacements, renovation and extensions of existing plant.
As municipal utility operations have become more complex and have borrowed from the experiences of privately-owned utilities, the so-called "utility method” of estimating revenue needs has evolved and is now the generally preferred method. It is different from the cash method in its handling of capital related expenditures; in place of annual estimates of cash flow therefor, which can vary widely from year to year, the utility method substitutes long term depreciation of, plus a return or profit on, the capital invested in the utility plant. This handling of capital related expenditures not only allows the amortization of such expenditures at a determinable annual rate over a period of time, but it also allows the recovery of initial capital investment from future customers, a particularly important consideration in an expanding system.
When the total revenue needs of the utility have been thus estimated, the estimated non-operating revenues of the utility are deducted, to determine the amount of money to be raised by charges for utility service, i.e., the aggregate amount to be raised from differing rates charged to different classes of service.
The final, and most complicated, step in the rate-making process is the definition of different classes of user and the determination of the relative charges to be made therefor. While a variety of factors other than cost of service may be perti nent in determining rates for different classes of intra-city users, cost to the users is the framework around which the rate structure is constructed. For extra-city service, the cost thereof would seem to be the primary factor in rate determination. In practice, it does not appear that the city of Detroit has assigned any weight to any other factor in its extra-city rate determinations, although some contracts contain minimum quantity requirements.
The allocation of the estimated costs of the system as a whole between intra- and extra-city users may be undertaken in various ways. The two methods most widely used are the Demand-Commodity Method and the Base-Extra Capacity Method, described in Defendant’s Exhibit P, Water Rates, 2d Ed., A Manual of Water Supply Practices, American Water Works Association, 1972. Each method attempts to allocate to the different customers a share of the operating and capital costs of the system fairly reflecting the kind of use the customer makes of the system. Each method involves a two-stage process, first attempting to allocate costs into two categories of service-cost functions, and then allocating those costs between customers according to their respective responsibility for each of the functional costs.
The expert witnesses for the parties, in retrospectively evaluating the reasonableness of the water rate in question, applied these various accounting methods to allocate the operating costs and plant capacity of the system between the city and out-city sectors of the water service. After allocation, the experts used the utility-basis method to subtract from the rate charged to each sector its share of the operating costs and capital depreciation, leaving a figure for each sector that represented the "return on investment.” It is this return on investment or, more properly, the resulting "rate of return,” that is central to this appeal.
While there were percentage differences between the findings of the experts, the trial judge "estimate[d] that . . . [the rate of] return would be between eight and nine percent annually [for out-city users], and that the differential between the negative intra-city return and the extra-city return would not be less than 13% in the best year and perhaps as much as 18% in the worst year.” Thus, while this suit began over the amount of an across-the-board increase that made no attempt to disturb the then-existing allocation of the revenue burden between the resident and out-city users, it has obviously shifted to a contest over the distribution of the revenue burden rather than its gross amount.
The plaintiffs’ evidence, as presented at trial through their two principal expert witnesses, and plaintiffs’ arguments to the court, centered first on their contention that any disparity in the rate of return between the two rate-paying sectors of the system was unreasonable and inequitable and, therefore, in violation of the contract. Secondly, after damaging cross-examination of their expert witness, plaintiffs argued that, even if a disparity per se is not unreasonable, one that amounts to subsidy of one rate payer by another is unreasonable.
Reasonableness of the rate of return as depen dent upon a utility’s cost of capital was discussed only in response to defense counsel’s cross-examination. When pressed as to the basis of establishing a reasonable rate of return to the out-city users under the utility basis, each witness did on at least one occasion say it would depend on an analysis of the components of the capital structure.
Specifically, it was not until plaintiffs’ expert’s rebuttal testimony that he expressed an opinion, on direct examination and over defense counsel’s objection, regarding the reasonableness of the suburban rate of return with reference to the cost of capital. At that point, he opined that a reasonable rate must be related to the cost of attracting capital. He testified that the city was paying 4.5 percent on the remaining debt on a bond issue offered in 1971 (the embedded interest rate). He indicated that the difference between that rate— the cost of debt — and the 9.48 percent rate of return, about five percent, was too much.
A year after all the testimony had been taken, plaintiffs’ counsel argued for the first time, at closing argument, that the "cost of capital” method had to be employed, saying "[n]ow if you are going to develop it [the utility-basis method] independently for outside city customers but doing it properly, you’ve got to look at cost of capital.” Plaintiffs’ counsel went on to argue that the city was favored with low interest on municipal bonds, which is a major part of the defendant’s capital structure and, when that is considered, a nine percent return on the total capital investment is not reasonable.
The trial court did not comment on the cost-of-capital argument and entered a judgment of no cause of action.
Relying on the testimony of plaintiffs’ expert on . cross-examination, the trial judge found that the 9.8 percent rate of return projected by that expert for one of the years in question was not, standing alone, unreasonable and that investment returns of ten percent among utilities were not unusual. Regarding the differential, the trial court found
that the utility method of rate-making, with a differential rate of return favoring the owner-municipality, is an accepted practice in the American water industry. The method is not only judicially sanctioned in Michigan, but a differential rate of return on net capital investment favorable to the owner-municipality has been approved (1) as a matter of implied contract, Detroit v Highland Park, [326 Mich 78; 39 NW2d 325 (1949)], (2) in the interpretation of contracts calling for reasonable rates, Oakland County v Detroit, 81 Mich App 308 [265 NW2d 130] (1978), and (3) under contracts using language identical to that appearing in the contracts of many of the plaintiffs herein under which rates are to be "reasonable in relation to the costs incurred by the city for the supply of water,” [Meridian Twp v East Lansing, 342 Mich 734; 71 NW2d 234 (1955)].
As a rationale for his decision, the trial judge emphasized the posture of this case by quoting from our opinion in Meridian Twp, supra, p 752:
It would serve no useful purpose to discuss further, in this opinion, either the elaborate cost and worth analyses submitted to us through the diligence of counsel, or the accounting theories presented and argued. After all, we are not setting a rate. We are deciding merely whether a rate charged goes beyond a contract which requires that it be "reasonable in relation to the costs incurred by the city for the supply of water.” As we noted, identity of rates with costs is not required. As a practical matter this would impose an impossible accounting task. The relationship need only be a reasonable one.
In the Court of Appeals, the plaintiffs renewed their argument that the approximately nine percent rate of return included in their water rates combined with the negative rate of return to the Detroit users amounted to a subsidy and was therefore unreasonable. Plaintiff also argued that the application of the utility-basis method of allocating costs required the use of the "cost of capital” method of determining a fair return.
Although the Court of Appeals agreed with the trial court that a suburban rate of return may be reasonable even if the resident customers’ rate of return is less than zero, it disagreed with Judge Peterson’s ultimate conclusion regarding reasonableness. It found that the trial court erred in basing its opinion "solely on the fact that regulated utilities in Michigan were allowed rates of return higher than eight percent or nine percent during the same period.” City of Plymouth v Detroit, 130 Mich App 155, 170; 344 NW2d 291 (1983). It found that
[i]n comparing the overall rate of return in the instant case to the overall rates of return allowed regulated utilities without comparing their costs of outstanding debt and cost of attracting capital, the trial judge may well have sanctioned an unreasonably high rate of return on the equity on the suburban investment. [Id]
Thus, the Court of Appeals reversed and remanded, instructing the trial court as follows:
[F]irst ascertain the actual overall rate of return for each of the fiscal years the contested rates were in effect. The trial judge must then determine, for each of the years in question, the debt-to-net-investment ratio of the share of the system devoted to suburban use and the actual rate of return, or cost, of the debt. The actual rate of return on equity can then be determined by working backwards from the actual overall rate of return.
After ascertaining the actual rate of return on equity for each fiscal year in question, it will then be necessary to determine the reasonableness of that rate of return. This can be done by comparing the rate of return on equity in the instant case with the rates of return on equity allowed other utilities with similar credit ratings during the same periods, and by ascertaining for each year the going interest rates on municipal bonds issued by municipalities with credit and bond ratings similar to the ratings of the defendant during the years in question. Rates of return on equity in extra-city shares of other water systems owned by municipalities with credit and bond ratings similar to the ratings of the defendant during the period in question would be especially useful as a guide in evaluating the reasonableness of the rate of return in the instant case.
Finally, should the trial judge conclude that the rate of return on equity is unreasonable, the judge will have to ascertain what reasonable rates of return on equity would be, as it appears that plaintiffs’ remedy for unreasonable rates depends on the difference in cost between the rates as actually charged and reasonable rates. [Id., pp 171-172.]
The Court of Appeals acknowledged,
So far as we can determine, the cost of capital method has never been used to determine the proper rate of return to be received by a municipally owned utility. [Id., p 169.]
It also "acknowledge^] that our resolution of this appeal will probably require an extensive evidentiary hearing and introduction of proofs not introduced at trial.” The Court nonetheless expressed its belief that its disposition of the case "is necessary to achieve a reasoned result.” Id., p 172.
Finally, the Court of Appeals found that the applicable version of MCL 123.141; MSA 5.2581, providing that rates charged to another unit of government shall not be more than twice those charged to its own users, does not establish an outer limit of reasonableness as a matter of law where, as here, there is a contractual requirement of reasonableness.
The City of Detroit filed an application for leave to appeal in this Court, and leave was granted by order issued on May 17, 1984. 419 Mich 870 (1984). Defendant alleges that the Court of Appeals erred: in failing to apply the clearly erroneous standard of appeal to the trial court ruling; in requiring that the cost-of-capital method of determining rate of return be used when it was not properly raised below; in failing to apply the standard of reasonableness set forth in MCL 123.141; MSA 5.2581; and in improperly instructing the trial court on remand as to the specific application of the cost-of-capital method and as to all of the components of proper rate determination.
Plaintiffs respond with a different set of issues, maintaining that Detroit’s authority to set rates under the contracts should not be presumed valid, that the trial court’s method of applying the utility-basis method was clearly erroneous, that since Detroit requested application of the utility-basis method, it cannot now object to the Court of Appeals "complete” application of that theory, that the standard of reasonableness to be applied is contained in the contracts, and that the Court of Appeals did not err in remanding this case to the trial court for application of the "ordinary” utility-basis theory and methodology to test the "fairness” of the suburban rate of return.
Analysis
The major issues may be summarized as follows: (1) Does the applicable version of MCL 123.141; MSA 5.2581 provide the governing standard of reasonableness? (2) Is the cost-of-capital method required by law or should this Court require its use in this context? (3) What is the applicable standard of review, and on which party did the burden of proof lie?
I
We must first respond to the city’s claim that the relevant version of MCL 123.141; MSA 5.2581 represents the only applicable standard of reasonableness. That statute provided that the city may charge its outlying customers not more than twice what it charges its own users, except where "the water is delivered [to a community] lying more than ten miles beyond [the selling city]” and that "any price charged that is more than double shall bear a reasonable relationship to the services rendered.” Appellant maintains that since the suburban rates in this case are not more than double the city rate, they are reasonable per se. By making reasonableness a test only when the out-city rates are more than double the resident rates, appellant contends that the Legislature considered any rate less than that amount to be reasonable.
As support for this position, appellant cites Me ridian Twp, supra. In that case, Meridian Township sued to enjoin the City of East Lansing from charging and collecting increased water rates, alleging that such increased rates were not reasonable in relation to the costs incurred by East Lansing in supplying the water, as required by the contract between the parties. The rate increase in question in that case effectively resulted in rates charged to Meridian which were 187 percent of those charged to customers in East Lansing.
MCL 123.141; MSA 5.2581, at the time of Meridian Twp, did not include townships within its purview; therefore, it was held to be inapplicable to that case. However, this Court
note[d] in passing, that the Michigan legislature has clearly, with respect to cities and villages, resolved the competing considerations of exhorbitant rates versus fair profits in [MCL 123.141; MSA 5.2581], by providing that the rate charged such outside municipalities shall not be more than double the rate paid by consumers within their own territory. [Meridian Twp, supra, p 748.]
Relying on this dictum, appellant argues that, as to cities and villages, "the Meridian Township Court interpreted MCL 123.141 [MSA 5.2581] as having 'clearly . . . resolved’ the question of reasonableness as a matter of law.” Appellees counter that the statute only provides for a statutory floor and ceiling of reasonableness and that the specific provisions of the contracts between the parties govern their relationship.
The Court of Appeals agreed with the plaintiff cities, holding
that the statute does not render reasonable as a matter of law rates within its maximum and mini mum provisions in the face of a contractual provision which states that rates shall be reasonable in relation to costs. Regardless of how the statute reads, defendant has limited its discretion in setting rates by agreeing to the contractual provision. [City of Plymouth, supra, p 161.]
The Court of Appeals noted that Meridian Twp "did not hold that the statutory provision would have taken precedence over the contractual provision had the statute applied to townships.” Id.
We find the response of the Court of Appeals to be eminently logical. First, the dictum in Meridian Twp does not purport to address itself to the real issue of this case, viz., does the statute govern over a specific contract, even though the contract in that case did contain a similar reasonableness provision. The Meridian Twp Court simply did not need to address the question. Secondly, the purpose of the quoted dictum was to note that the "statute, even if applicable, . . . has not been offended.” Id., p 160. It was merely additional support for the conclusion, after a comprehensive analysis of the cost computations, that the rates were not unreasonable. Finally, if appellant’s view were adopted, it would take away a major element of the right to contract which was granted to municipal corporations under MCL 123.141; MSA 5.2581.
II
Since we do not find the water rate to be reasonable as a matter of statutory law, we next address the Court of Appeals finding that a determination of the reasonableness of a rate of return under the utility-basis method cannot be made without application of the cost-of-capital method. We do not agree with the conclusion that the cost-of-capital methodology is required.
As previously noted, the cost-of-capital method requires the weighting of "the costs of each component of capital . . . according to the ratio each bears to the total capital structure of the utility and the resultant figures are added together to yield a sum which represents the overall rate of return.” City of Plymouth, supra, p 167. While acknowledging that "the cost of capital method has never been used to determine the proper rate of return to be received by a municipally owned utility,” id., p 169, the Court of Appeals found it to be "a widely accepted method of determining the overall rate of return to be allowed a public utility,” id., p 167, and held that it was error for the trial judge not to consider separately the return on equity on the suburban investment. Id., p 170. The Court instructed that the proper means of assessing reasonableness of return on equity was to determine the rate of return on equity received by other utilities with similar credit ratings during the same period and to ascertain "the going interest rates on municipal bonds issued by municipalities with credit and bond ratings similar to the ratings of the defendant during the years in question.” Id., p 172.
The Court of Appeals was correct in its statement of the law when it opined, the "cost of capital method has never been used to determine the proper rate of return to be received by a municipally owned utility.” City of Plymouth, supra, p 169. In Meridian Twp, supra, where we dealt with the interpretation of a nearly identical "reasonable” clause in a contract whereby East Lansing supplied water to Meridian Township, we upheld as reasonable an East Lansing ordinance providing that the rate for out-city users would be 150 percent of the rate for the resident users. We noted in that case that the term reasonable must be construed with reference to the facts.
We are asked by the appellant to find that the rate charged is not reasonable as above prescribed. It will be noted that the clause under examination does not equate rates to costs. Identity is not required. Obviously there is elbowroom for adjustment. The requirement merely is that they shall be "reasonable” in relation to costs. The word "reasonable” with respect to rates charged by utilities is a word of the most universal employment. . . . The determination of its meaning, in any case, is not subject to mathematical computation with scientific exactitude but depends upon a comprehensive examination of all factors involved, having in mind the objective sought to be attained in its use. Here it is related to the costs incurred by the city in the supply of water. [Id., p 749.]
Moreover, a quéstion regarding the reasonableness of a rate of return, generally, is considered by courts to be one of fact. While no court has explicitly required or rejected the cost-of-capital method in a municipal context, the cases employing a cost-of-capital approach to a rate of return issue stress that reasonableness of return is a question of fact.
In United Gas Pipe Line Co v Louisiana Public Service Comm, 241 La 687, 702; 130 So 2d 652 (1961), the court noted that "[i]n a very real sense, the problem of a fair return is one of economics.” Quoting Southern Bell Telephone & Telegraph Co v Louisiana Public Service Comm, 239 La 175, 225; 118 So 2d 372 (1960), that court further observed:
"The ascertainment of a fair return in a given case is a matter incapable of exact mathematical demonstration. It is one of reasonable approximation having its basis in a proper consideration of all relevant facts.”
The question of what constitutes a reasonable return is one of fact rather than of law. It requires the application of an enlightened judgment to the multiplicity of variables disclosed by the evidence. [United Gas Pipe Line, supra, pp 704-705. Emphasis added.]
The court in In re Hawaii Electric Light Co, Inc, 60 Hawaii 625, 636; 594 P2d 612 (1979), expressed the same view:
Questions concerning a fair rate of return are particularly vexing as the reasonableness of rates is not determined by a fixed formula but is a fact question requiring the exercise of sound discretion by the Commission. [Cites omitted.] It is often recognized that the ratemaking function involves the making of "pragmatic” adjustments and that there is no single correct rate of return but that there is a "zone of reasonableness” within which the commission may exercise its judgment. [Citations omitted.]
Accord Alabama Gas Corp v Wallace, 293 Ala 594, 602; 308 So 2d 674 (1975). "The determination of a fair return to provide the public with adequate service is a question of fact within the legislative realm of rate making.” The United States Supreme Court in Federal Power Comm v Hope, 320 US 591, 602; 64 S Ct 281; 88 L Ed 333 (1944), held
that the [Federal Power] Commission was not bound to the use of any single formula or combination of formulae in determining rates. Its rate-making function, moreover, involves the making of "pragmatic adjustments.” . . . Under the statutory standard of "just and reasonable” it is the result reached not the method employed which is controlling. ... It is not theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end. The fact that the method employed to reach that result may contain infirmities is not then important. [Emphasis added.]
Relying on the facts presented at trial in this case, the trial judge found the rate of return to be not unreasonable. We find no clear error in that conclusion.
The Court of Appeals was also correct in stating that the cost-of-capital method was "a widely accepted method of determining the overall rate of return to be allowed a public utility.” City of Plymouth, supra, p 167. However, that can be said only in the case of regulated utilities, where it is the responsibility of a public agency to set rather than review a rate. See, e.g., Hope, supra; Bluefield Water Works & Improvement Co v Public Service Comm, 262 US 679; 43 S Ct 675; 67 L Ed 1176 (1923); Washington Gas Light Co v Public Service Comm, 450 A2d 1187 (DC, 1982); Hawaii Electric Co, Inc, supra; Alabama Gas Corp, supra; United Gas Pipe Line Co, supra; Sun City Water Co v Arizona Corp Comm, 26 Ariz App 304; 547 P2d 1104 (1976). The case law dealing with the cost-of-capital method finds the courts reviewing the application of the cost-of-capital method as it was applied by the regulatory rate-setting body. In that sense, the Court of Appeals and appellees are correct that it is a common way of calculating a rate of return; however, it is by no means re quired, and we decline to establish such a requirement in this case.
We think it obvious that a cost-of-capital approach, had it been utilized by the parties in this case, would have been more revealing of the exact nature of the city’s rate of return. What is not obvious is whether such an approach would have been more helpful in determining the ultimate question at issue, the reasonableness of the rate of return. If, arguendo, after breaking down the components of the out-city share of capital, the rate of return on equity was to be revealed to be fifteen percent, how should its reasonableness be determined?
Aside from the technical difficulties of determining the cost of equity and the questionable applicability of the cost-of-capital method to the issue presented, its use would also require closer scrutiny of several policy questions. If, as it can be assumed, a municipality has a lower cost of debt because of the tax advantages of municipal bonds and the security of full faith and credit financing, where utilized, should the municipality be able to use this advantage over a private utility? Should it be able to do this by receiving a higher rate of return on its equity component of capital so long as its overall rate of return on capital does not exceed that of an otherwise comparable utility?
On the other side of the coin, should the city be held to a lower rate of return on equity because it does not need to issue and sell stock, and, as defendant points out, its investors are captive (the taxpayers of the owner city)? We touched on these policy questions in Meridian Twp, supra, p 747 (citing Note, Rate discrimination in sale of water service to non-residents, 101 U Pa LR 160, 162 [1952]).
"A city’s purchase of a utility plant is made on behalf of its citizens, who then become both consumers and owners. The requirement of serving nonresidents at the same rates as residents partly defeats the purpose of the purchase by decreasing the benefit derived from the resident consumers’ ownership. Utility service is only one phase of a prevalent situation in which nonresidents adjacent to cities enjoy the economic and other advantages of city life without being subjected to all the responsibilities of citizens.”
Our uncertainty about the relevant merits of requiring the cost-of-capital method to be applied to this case is further heightened by questions raised by appellant in its critique of the Court of Appeals remand order. The appellant argues that equity, as opposed to net investment, represents a utility’s net worth, or the amount by which the utility’s assets exceed its liabilities; equity is therefore incapable of apportionment between customer classes of the system. The appellant also argues that the Court of Appeals, in requiring on remand that Detroit’s return on equity be limited to the current rate paid on municipal bonds, seriously misunderstood the different risks and, therefore, the different costs, of attracting debt and equity capital.
Thus, in light of the foregoing considerations, we cannot agree with the Court of Appeals conclusion that the cost-of-capital method should be required as a matter of law in cases involving an assessment of the reasonableness of a rate of return associated with a challenged municipal water rate. Because the cost-of-capital method has not heretofore been applied to review the reasonableness of a rate of return of a municipally owned utility does not mean that it could or should not be utilized. In application, it may prove superior. This is far different, however, from saying, as the Court of Appeals in effect said, that this method must be applied in order to determine the reasonableness of the rate of return. On the basis of the foregoing analysis, we find no legal or factual basis for such a conclusion.
Ill
Having determined that the cost-of-capital method is not required in order to determine reasonableness, we lastly consider the issues of the burden of proof and standard of review.
The two issues are related. The trial court, relying on Meridian Twp, supra, and Highland Park, supra, held
that the fixing of such rates is a legislative matter with which the courts will not interfere unless the plaintiff shows that the rate determination was arbitrary, capricious or unreasonable. [Emphasis added.]
The Court of Appeals did not explicitly address the issue, but noted with approval the trial judge’s citation of Highland Park for the rule that
the setting of rates is a legislative matter and that the courts will not interfere unless the rate is arbitrary, capricious, or unreasonable. [City of Plymouth, supra, p 158.]
Thus, the Court of Appeals appears to have sidestepped the burden of proof issue by eliminating the "unless the plaintiff shows” language from its summary of the Highland Park standard as articulated by the trial judge. In Highland Park, where a contract for sewage rates was implied, we held:
The rate lawfully established by [Detroit] is assumed to be reasonable in absence of a showing to the contrary or a showing of fraud or bad faith or that it is capricious, arbitrary or unreasonable, and the burden of proof is on [Highland Park] to show that the rate is unreasonable. [Highland Park, supra, pp 100-101. Emphasis added.]
Likewise, Meridian Twp, p 753, articulated the same rule:
The burden of proof was on the plaintiff to show that the rates charged were, in fact, unreasonable with relation to costs.
Thus, we find no basis for the appellees’ contention that the burden lay on the defendant city to show reasonableness.
We find that the burden lay on the plaintiffs and that they failed to meet that burden by showing that the rate was arbitrary, capricious, or unreasonable. In the absence of such a showing, the Court of Appeals erred in its interference with the ratemaking in question.
The Court of Appeals stated:
Although none of the experts put it into words, ostensibly because none of them were asked to, they were saying that the reasonableness of the rate of return could be evaluated by employing the cost of capital method. It was not until the rebuttal testimony of Mr. Gillett, plaintiffs’ rate-making expert, that plaintiffs’ counsel sought to elicit evidence of the capital costs of the system. [City of Plymouth, supra, p 169.]
It is certainly true that not until rebuttal testimony of the plaintiffs’ principal witness did plaintiffs’ counsel attempt to elicit an assertion that a breakdown of the components of the capital structure produced a way to arrive at the reasonable ness of the rate of return on capital. After review of the extensive trial court records, we are convinced it is also certainly true that at no time did plaintiffs produce or attempt to produce the evidentiary basis necessary to examine the individual components of the capital structure of defendant’s system. It is also obvious from that review that the thrust of the plaintiffs’ case in chief was that the difference in rates between the resident and out-city users resulted in an unreasonable water rate, an argument that appellees have now abandoned on review. The plaintiffs’ pleadings, proposed findings of fact, and conclusions of law (submitted to the trial court after the close of the taking of testimony), testimony, and argument, except for the rebuttal testimony of one witness and counsel’s comments in his closing argument, did not mention the need for a cost-of-capital analysis. Moreover, the lack of adequate proof at trial was acknowledged by the Court of Appeals. It noted that "our resolution of this appeal will probably require an extensive evidentiary hearing and introduction of proofs not introduced at trial.” Id., p 172.
Having decided that the cost-of-capital method is not required, the effect of the Court of Appeals decision, if left to stand, would be to place on the trial court, rather than on the plaintiff, the burden of assuring that the evidence includes sufficient information to support whatever theory the plaintiff might advance for the first time at closing argument. This violates the standard clearly set forth in Highland Park and Meridian Twp, supra.
The plaintiff had ample opportunity to substantiate its claim on the theory with which it had chosen to prove that the rates in question were violative of the contract between the parties. The trial court concluded that the rates charged had not been shown to be unreasonable. We find no error in the trial court’s conclusion. We hold that the Court of Appeals erred in finding that the cost-of-capital method was required in order to determine reasonableness and, accordingly, also erred in affording the plaintiff an opportunity to retry its case on a theory not sufficiently advanced at trial.
The judgment of the Court of Appeals is reversed, and the judgment of the trial court is reinstated.
Williams, C.J., and Levin, Ryan, Cavanagh, Boyle, and Riley, JJ., concurred with Brickley, J.
The 1908 Michigan Constitution, art 8, § 23 authorized cities and villages to "acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation . . . without its corporate limits to an amount not to exceed 25 percent of that furnished by it within its corporate limits . A 1944 amendment of the section permitted such municipalities to sell and deliver water outside their corporate limits "in such amount as may be determined by the legislative body of the city or village . . . .” The same basic provisions are found today in Const 1963, art 7, § 24, except that the twenty-five percent limitation as to heat, power or light may be overridden by law, and outside-the-limits transportation is no longer subject to the twenty-five percent limitation but may be subject to limits "prescribed by law.”
The constitutions since 1908 have also required the Legislature to provide for home rule. Const 1908, art 8, §§ 20, 21; Const 1963, art 7, §§ 21, 22. The Home Rule Act provides that "[e]ach city may in its charter provide ... for the sale and delivery of water outside of its corporate limits in the amount as may be determined by the legislative body of the city . . . .” MCL 117.4f(3); MSA 5.2079(3). The Charter of the City of Detroit authorizes the sale of water outside the corporate limits of the city.
In addition, the version of MCL 123.141; MSA 5.2581 applicable during the years in question, 1917 PA 34, § 1, provided:
"Municipal corporations having authority by law to sell water outside their territorial limits, hereinafter referred to as corporations, may contract for such sale with cities, villages or townships having authority to provide a water supply for their inhabitants, but the price charged shall not be less than nor more than double that paid by consumers within their own territory. The price charged may be more than double that paid by consumers within their own territory if the water is delivered to a city, village or township lying outside the county within which the corporations are situated, and lying more than 10 miles beyond the territorial limits of the corporations. Any price charged that is more than double shall bear a reasonable relationship to the service rendered.”
The current version of that statute was amended by 1981 PA 89 to provide that
"[t]he price charged by the city to its customers shall be at a rate which is based on the actual cost of service as determined under the utility basis of rate-making.”
The statute as amended is inapplicable to this case.
The users outside the city administer the sale and distribution of the purchased water to their own citizens.
Forty-five of the contracts in question contain the "reasonable in relation to the costs” language of the Plymouth contract. An additional twelve contracts contain that language, plus:
"and shall be comparable to the rates charged other public corporations or public agencies served by the Detroit Board under like conditions.”
Four of the contracts refer to "uniform rates,” and two of the contracts merely require that the water will be available at "such price as shall be fixed, from time to time, by the said Board of Water Commissioners of the City of Detroit.” The rate provision in the City of Flushing’s contract provides that the
"rate of payment, by the City to the County, for all water delivered shall be two cents ($0.02) per 100 cubic feet greater than the amount per 100 cubic feet paid by the County to its water source for water.”
Finally, the remaining four contracts parallel the relevant version of MCL 123.141; MSA 5.2581, providing that the price
"shall not be less than that charged to the citizens of Detroit, nor more than double that charged to the citizens of Detroit.”
Plaintiffs Exhibit A: Water Service Agreement City of Detroit— City of Plymouth.
Plaintiffs Exhibit E: Report on Water Rates, DWSD.
Plaintiffs Exhibit G: Memorandum from the Division of Research and Analysis to Council Members.
The City of Plymouth, the City of Madison Heights, and the Greater Lapeer County Utilities Authority filed this suit
"for themselves and on behalf of all other municipalities, cities, towns and townships, and other public agencies and/or subdivisions similarly situated.”
Plaintiffs were certified as a class by order on December 22, 1979. "[A]ny municipality which purchases water, directly or indirectly from Defendants and has been required to pay higher water rates as a result of the May, 1976 water rate increase” were deemed eligible to be included in the class. Seventy-six communities eventually "opted in” to the class.
The water rate increase in question occurred in 1976, and plaintiffs filed suit May 24, 1976. However, the trial was not heard until May, 1980, and, therefore, by the time of trial, the actual expenses and costs for the first several years were available.
The rate of return is achieved by dividing the return on investment by the "net plant” (original cost of plant less accumulated depreciation).
There were some differences of opinion between the parties on cost allocation which are not relevant to the issues here.
See n 17 and accompanying text.
The trial judge did not directly address the subsidy issue as opposed to a differential, but did find that the out-city rate must be judged on its own merits, irrespective of the in-city rate of return. The plaintiffs abandoned the differential and subsidy issue in this appeal. With respect to the differential issue, the trial judge pointed out that the fact that the oldest (and most depreciated) components of the physical plant were used to furnish the resident users was a major factor for the negative rate of return on investment for resident users. It was also pointed out during trial that a low or negative rate of return to resident users could result from an overall system-wide rate of return that was lower than necessary.
This one-year delay was caused by an apparent lack of cooperation on the part of the court reporter. Because the reporter failed to supply the transcript of the trial proceedings within the time agreed upon, the judge was forced to find the reporter in contempt of court, after having issued a bench warrant on March 5, 1981, to obtain his appearance in court. The transcript eventually supplied was, according to the trial judge, "abysmal, containing numerous errors.”
MCL 123.141; MSA 5.2581 has since been amended to provide:
"(2) The price charged by the city to its customers shall be at a rate which is based on the actual cost of service as determined under the utility basis of rate-making. This subsection shall not remove any minimum or maximum limits imposed contractually between the city and its wholesale customers during the remaining life of the contract. This subsection shall not apply to a water system that is hot a contractual customer of another water department and that serves less than 1% of the population of the state. This subsection shall take effect with the first change in wholesale or retail rate by the city or its contractual customers following the effective date of this subsection.” 1981 PA 89.
Where the cost-of-capital method is utilized, it does not bring certitude or ease of application. It will be recalled that the appellees are arguing that Detroit’s debt is unusually low. They maintain that when the debt portion of the capital structure was extrapolated from the overall approximately nine percent rate of return for one of the years in question, an approximately fifteen percent return in the equity portion of defendants’ capital structure resulted. Because the trial judge in this case used the overall rate of return on capital, it was only necessary to compare the overall rate of return on the capital of other utilities. The trial judge found that the overall rate of return of between eight and nine percent was not unreasonable. The judge noted that the plaintiffs’ own expert "could not say that the rate he projected for his 1977 test year, 9.8%, was unreasonable.”
However, once the capital structure is broken down into debt and equity, new questions arise. Cost of debt is easy to determine because of its contractual nature. Cost of equity, however, is a different matter and one that has given reviewing courts some difficulty.
The Louisiana Supreme Court, in a rate-making case which applied the cost-of-capital method, observed:
"The most serious controversy in this case involves the rate of return on common equity. Unlike debt capital, there is no contractual basis for ascertaining its cost.” United Gas Pipe Line Co, supra, p 707.
Likewise, the Arizona Court of Appeals noted,
"The cost of equity capital is not capable of such mathematical precision and in fact is a judgment call, enlightened by consideration of all the relevant factors.” Sun City Water Co, supra, p 309.
The same court reiterated,
"the determination of a rate of return which includes a cost of equity factor, is not a precise science, and . . . reasonable men may differ . . . .” Id., p 309.
The Court of Appeals in this case also acknowledged,
"Determination of the rate of return on equity, however, is not capable of such mathematical precision and therefore provides the primary controversy in many utility rate cases. [Citations omitted.]
"In such cases, the reasonableness of the overall rate of return depends largely upon the reasonableness of the return on equity.” City of Plymouth v Detroit, supra, p 168.
Because we do not agree with the Court of Appeals conclusion that the cost-of-capital method must be applied in this case, we do not reach the question how it should be applied. In any case, it is not possible for us to answer these questions about the cost-of-capital method, or to even say that they are answerable in the context of this case, because an evidentiary base for the method’s application was not established in the trial court.
The plaintiffs’ late interest in putting something on the record regarding the cost of capital was probably prompted by defendant’s cross-examination of plaintiffs’ principal witness. In answer to a question about a reasonable return, the witness answered:
[Testimony of Mr. Gillett]:
"A. I don’t have enough information to say whether or not a privately owned utility should earn 9.8 percent. First, I’m out of my area of knowledge when I start talking about what proper rates of return are. In terms of percentages, a return on capital, it depends on many things; the debt structure; the need to attract new capital, if the system is expanding. I don’t think I can give an answer to that. 9.8 percent is not an unreasonable return for electric utilities and others. We’re not talking of a private utility with stock. We’re talking of a publicly owned municipal system with tax free bonds.”
A week later, when this witness, on rebuttal, attempted to furnish for the first time some information about the city’s low embedded cost of debt and to conclude therefrom (although tentatively) that the rate of return may be too high, the defendant, on cross-examination, elicited the following:
"Q. In this rate study there’s a range of reasonableness within, which you would expect three or four different people to come in?
"A. That’s correct.
"Q. And, isn’t where we end up here is that what you don’t like and haven’t liked all along is that the differential may result in a negative return inside?
"A. I think that’s the gut issue.
"Q. Now, let’s just look at the 9 percent return to outsiders alone. Now, this business about what the city’s embedded interest rate was, was available to you in July of 1979, wasn’t it?
"A. Uhmm, yes, it was.
"Q. Was it available to you in October when your deposition was taken?
"A. Yes, it was.
”Q. Was it available in December when you made your report?
"A. Yes.
"Q. It was available when you testified last week?
"A. That’s right.
”Q. And after working on it for some three or four months, whatever you did, when you testified at your deposition you testified, did you not, that standing alone you could not say that 9 percent was an unreasonable rate of return for suburban customers?
"A. I believe I said that, yes.
"Q. Okay. And, then when you filed your report, referring to Exhibit PI on page 22, under your heading 'Financing,’ you said as follows, didn’t you: 'We cannot comment on a proper rate or rates of return.’ Isn’t that right?
"A. That’s correct.
"Q. And that was true when you said it then, wasn’t it?
"A. Yes.
"Q. Is it true now?
"A. It’s still true.
"Q. Okay. And that’s still your testimony; that you cannot comment on a proper rate or rates of return?
"A. It was not the purpose of this report to recommend a rate of return.” | [
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Cavanagh, J.
The issue presented by this case is whether the subject trust instrument evidences an intention of the settlor to exclude adopted grandchildren from the class of beneficiaries. The probate court and Court of Appeals concluded that adopted grandchildren were excluded. We disagree, and reverse.
I
Jane Gilmore Maloney, the settlor, created an irrevocable inter vivos trust on December 29, 1964, designating it as the "Jane Gilmore Maloney Grandchildren’s Trust, dated December 29, 1964.” It provided that until February 1, 1975, the income from the trust would be distributed to public bodies or charitable organizations. On February 1, 1975, the trust property was to be separated into equal funds for each of the settlor’s grandchildren living on that date. The trust instrument further provided that if additional grandchildren were born after February 1, 1975, and before the final distribution of the trust property, separate funds for these grandchildren were to be created by deducting equal shares from the then-existing funds.
On February 1, 1975, there were three grandchildren of the settlor living, and separate funds were created as provided by the trust instrument. The present dispute arose because on June 25, 1976, one of the settlor’s sons adopted three children.
The trustee was uncertain as to the status of the adopted children and brought an action seeking a declaratory judgment as to their right to participate as beneficiaries of the trust. The action was treated as a petition for instructions, and was transferred to the probate court under MCL 700.22; MSA 27.5022.
The probate court and the Court of Appeals recognized that MCL 700.128; MSA 27.5128 creates a presumption that adopted persons are within terms such as "grandchild,” unless it appears from the terms of a trust agreement or will that they are to be excluded:
In the construction of a trust agreement or will, whether executed on, before, or after June 23, 1966, the term "child”, "grandchild”, "issue”, "heir”, "descendant”, "beneficiary” or other equivalent term shall be construed to include any adopted person and his descendants whether natural or adopted unless a contrary intention appears by the terms of the instrument or unless the estate devised to the "child”, "grandchild”, "issue”, "heir”, "descendant”, "beneficiary” or equivalent person vested before June 23, 1966, in an already ascertained person or persons who have an immediate indefeasible right of enjoyment or a present indefeasible fixed right of future enjoyment in the estate.[ ]
Both courts, however, found such an intention to exclude adopted grandchildren because of the settlor’s use of the words "born” and "date of birth” at several points. The probate court reasoned that inclusion of adopted grandchildren would require rewriting the trust document to add reference to the date of entry of an order of adoption. The court directed the trustee not to withdraw assets from the existing trusts for the natural-born grandchildren of the settlor.
The guardian ad litem of the adopted grandchildren appealed, but the Court of Appeals affirmed in an Unpublished per curiam opinion. The Court of Appeals also focused on the reference to when grandchildren were "born” and to their "dates of birth.” It noted several cases in other jurisdictions holding that classifications of beneficiaries by birth indicates an intent to include only natural born persons. It agreed with the probate court that inclusion of adopted grandchildren would require too drastic a revision of the operative provisions of the trust:
We cannot agree, as appellants apparently contend, that only a declaration similar to "I intend to exclude adopted grandchildren” would clearly and unambiguously express the settlor’s intent. To read the words "born or adopted” into the document at every place where the term "born,” or similar language referring to birth, appears, exceeds the proper bounds of trust construction and amounts to reformation.
We granted leave to appeal. 419 Mich 933 (1984).
II
A fundamental precept which governs the judicial review of wills is that the intent of the testator is to be carried out as nearly as possible. As with other legal documents, the "intent” is to be gleaned from the will itself unless an ambiguity is present. The law is loath to supplement the language of such documents with extrinsic information. This is especially so in the case of testamentary documents because the maker is not available to provide additional facts or insight.
However, presence of an ambiguity requires a court to look outside the four corners of a will in order to carry out the testator’s intent. Accordingly, if a will evinces a patent or latent ambiguity, a court may establish intent by considering two outside sources: (1) surrounding circumstances, and (2) rule of construction. In re Butterfield Estate, 405 Mich 702, 711; 275 NW2d 262 (1979). [In re Kremlick Estate, 417 Mich 237, 240; 331 NW2d 228 (1983), reh den 417 Mich 1143 (1983).]
These general rules apply to the interpretation of trust documents. We note that generally, a settlor must relinquish permanent control of trust property to enjoy the favorable tax consequences inherent in an irrevocable inter vivos trust. Bogert, Trusts & Trustees (2d ed), §234, pp 47-48. Accordingly, we should ascertain the settlor’s intent at the time the instrument was created.
We cannot say that the wording of the trust is clear and unambiguous. We believe that the Court of Appeals and the probate court have attached undue importance to the use of the term "born” and "date of birth” in the trust instrument. Those terms appear to us to be convenient ways of explaining the mechanics of the administration of the trust. We are not persuaded that those terms clearly indicate an intent to exclude adopted grandchildren.
The Court of Appeals noted that classification by birth generally indicated an unambiguous intent to include only natural born persons. See n 7. However, numerous cases from this and other jurisdictions indicate that such an interpretation is far from the general or prevailing view. On the contrary, different circumstances, statutes, and instruments have created a variety of results. See generally, 76 Am Jur 2d, Trusts, § 144, pp 386-387; Bogert, supra, § 182, pp 267-306. 86 ALR2d 115, § 4 (Later Case Service, pp 343-346).
We find that the wording of the trust is ambiguous. Accordingly, the rule of construction which includes adopted persons should be employed. MCL 700.128; MSA 27.5128. That statute requires an expression of intent to the contrary. However, we find no indication of an affirmative intention to exclude adopted children. At the time the trust instrument was executed, there were no adopted grandchildren, and we think it likely that the settlor simply did not consider that possibility. We hold that, in the absence of any expressed intention, the statutory presumption that adopted grandchildren are to be treated like any other grandchild controls.
The judgment of the Court of Appeals and the probate court’s order dated September 9, 1981, are reversed. The case is remanded to the probate court for an entry of an order instructing the trustee to make a proper division of the trust assets and to provide equal trusts for the adopted grandchildren in accordance with the terms of the instrument.
Reversed.
Williams, C.J., and Levin, J., concurred with Cavanagh, J.
The trust instrument provided that if there were no grandchild living on that date, such a fund should be created on the date of birth of the first grandchild.
The final distribution date was to be when the settlor’s youngest surviving son reached fifty years of age or on the death of both sons.
Another grandchild was born on June 1, 1980.
All three of the adopted children had been born before 1975.
In 1957 the Legislature amended the adoption code to provide that adopted persons have all of the rights of natural children. 1957 PA 255. That statute did not mention wills and trusts. The predecessor of the current statute was enacted effective June 23, 1966. 1966 PA 128, former MCL 702.14a; MSA 27.3178(84a). These statutes reversed the common-law presumption that terms such as "child,” "grandchild,” or "issue” created a presumption against including adoptees. See, e.g., In re Graham Estate, 379 Mich 224; 150 NW2d 816 (1967); Russell v Musson, 240 Mich 631; 216 NW 428 (1927).
The portions of the trust instrument include the following provisions:
"3. February 1, 1975, or the date of birth of the first grandchild of mine bom after February 1, 1975, if there is no grandchild of mine living on February 1, 1975, shall he the 'initial division date.’ The 'final division date’ shall be the date whenever after February 1,1975, my youngest son at the time living has reached age fifty years or both of my sons have died. 'Son’ and 'sons’ in this instrument refer to my two sons now living, namely, Steven H. Maloney, bom August 20, 1942, and Daniel G. Maloney, born November 22, 1944.
"5. On the initial division date the trustee shall divide the trust property into as many equal separate funds as there are grandchildren of mine then living, and a fund shall be named for each such grandchild. If a grandchild or grandchildren of mine shall be born between the initial division date and the final division date, then as of the date of birth of each such grandchild the trustee shall deduct equally from the separate funds named for other grandchildren of mine then held hereunder sufficient amounts to provide an additional separate fund to be designated by the name of such newly born grandchild equal in value to the average value (after deduction of such amounts) of the funds from which the deductions are made.
"7. If no grandchild of mine is born before the final division date, then on that date the trustee shall divide and allocate the trust property in equal shares between my sons, if then living, otherwise per stirpes among the then living descendants of my parents. Each share so allocated shall be retained in trust as a separate and independent trust fund designated by the name of the beneficiary to whom it is allocated and held and disposed of as provided in this instrument.”
Vaughn v Vaughn, 161 Tex 104; 337 SW2d 793 (1960); Wachovia Bank & Trust Co v Andrews, 264 NC 531; 142 SE2d 182 (1965); First National Bank of Kansas v Waldron, 406 SW2d 56 (Mo, 1966). Contra In re Trusteeship Under Agreement With Nash, 265 Minn 412; 122 NW2d 104 (1963).
In In re Trusteeship Under Agreement With Nash, n 7 supra, pp 419-420, the court was faced with a similar argument regarding the effect of the settlor’s use of the term "hereafter born,” in the face of a statutory presumption like that in the Michigan statute. The court found no intent to exclude adoptees:
"We therefore conclude that settlor, Willis K. Nash, used no expression indicative of his attitude toward adopted children of his son, Willis Vanderhoef Nash. He very likely gave the matter no thought. The phrase 'hereafter born’ was obviously intended to include those who might become children of the life tenant before the termination of the trust. It does not, in our opinion, negative the possibility of adopted children. In dividing the trust for distribution to remainder-men, settlor designated them only as 'children’ of his son. We cannot assume he and his attorneys were wholly oblivious to the laws of adoption when they drafted the trust instrument. Settlor having at most shown an indifference to their effect, we are not prepared to say that considerations of public policy require us to find settlor entertained a conscious purpose to exclude adopted children. The reasoning and philosophy expressed by the legislature and the courts in this state require a contrary conclusion.” (Emphasis added.) | [
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Per Curiam.
The issue in this case is whether, where a defendant has committed separate felonies during a single transaction, he may be convicted of more than one count of possession of a firearm during the commission of a felony. Under these circumstances, it is permissible to enter more than one felony-firearm conviction, and we thus reverse in part the judgment of the Court of Appeals.
I
On March 7, 1981, two persons were at work in a gas station in Pontiac. A car entered the driveway. When one of the attendants saw a handgun lying on the front seat of the car, he and the other attendant retreated inside the station. Looking back, they saw the defendant pointing his gun at them. Hiding behind a steel door, they summoned the police, who arrested the defendant.
The defendant was charged in a four-count information. The first count alleged that the defendant had assaulted one of the attendants with a dangerous weapon. MCL 750.82; MSA 28.277. The second count alleged that the defendant was guilty of possession of a firearm during the commission of the assault with a dangerous weapon. MCL 750.227b; MSA 28.424(2). The third and fourth counts alleged, respectively, assault with a dangerous weapon and felony-firearm as to the second attendant.
The defendant was tried before a jury in July of 1981, and was found guilty as charged. Subsequent proceedings resulted in a new trial. This time, the defendant waived a trial by jury. A bench trial took place in April of 1983, and the defendant was again found guilty as charged. He was sentenced to concurrent terms of from twenty-eight to forty-eight months in prison for each assault conviction, and concurrent terms of two years in prison for each felony-firearm conviction. The assault sentences were to be served consecutively to the felony-firearm sentences.
The defendant appealed to the Court of Appeals, which affirmed the assault convictions and one of the felony-firearm convictions. The Court of Appeals vacated the other felony-firearm conviction on the ground that it constituted double jeopardy.
Defendant has filed a delayed application for leave to appeal, and the plaintiff has timely applied for leave to appeal as cross-appellant.
II
In setting aside one of the defendant’s two convictions of felony-firearm, the Court of Appeals relied upon People v Adams, 128 Mich App 25; 339 NW2d 687 (1983):
The fourth issue is whether double jeopardy occurred when defendant was convicted of two counts of felony firearm for possession of a pistol during one continuous transaction.
This Court recently in People v Larry Adams, 128 Mich App 25; 339 NW2d 687 (1983), in a well- . documented opinion found that when one firearm is used and possessed in a continuous criminal transaction, only one felony-firearm conviction is authorized, notwithstanding that more than one felony may be committed during the course of the transaction. We follow that logic of Adams and vacate one felony-firearm conviction.
In Adams, pp 32-34, the Court of Appeals employed the rule of lenity, as well as its interpretation of the intent of the Legislature, to justify setting aside one of defendant’s convictions of felony-firearm:
Defendant also argues that his conviction of two counts of possession of a firearm during the commission of a felony violated the constitutional prohibition against double jeopardy. MCL 750.227b(l); MSA 28.424(2X1) provides in part:
"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years.”
The prosecution relies on the [rule of Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932)] and argues that the Legislature intended to authorize multiple punishment be cause each conviction requires proof of a fact that the other does not; that is, each conviction requires proof of the commission of a separate felony. While this may be true if one views defendant’s two felony-firearm convictions separately, it must be borne in mind that each of those felony-firearm convictions is not violative of double jeopardy only because the felony-firearm statute reflects a clear legislative intent to impose multiple punishment. Wayne Co Prosecutor [v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).] However, we do not believe that the Legislature in authorizing such multiple punishment intended to authorize more than one felony-firearm conviction where there is but a single continuous criminal transaction involving possession of only a single firearm, notwithstanding that more than one felony may be committed during the course of that transaction. We note that defendant acquired a second firearm here, but only after both felonies were complete. Compare People v Mahone, 97 Mich App 192, 194; 293 NW2d 618 (1980).
We so hold in view of the Legislature’s use of the phrase "the time he commits or attempts to commit a felony” in the felony-firearm statute and the rule of lenity in construing criminal statutes discussed in People v Bergevin, 406 Mich 307; 279 NW2d 528 (1979), and People v Johnson, 406 Mich 320; 279 NW2d 534 (1979). In Bergevin the Court held that, despite the alternative definitions of the crime in MCL 750.349; MSA 28.581, the Legislature did not intend to authorize multiple convictions for kidnapping where only one person was abducted. Similarly, in Johnson the Court held that, despite the alternative definitions of the crime in MCL 750.520b; MSA 28.788(2), the Legislature did not intend to authorize multiple convictions for first-degree criminal sexual conduct where only one sexual penetration took place. Based on the foregoing, we vacate one of defendant’s convictions for possession of a firearm during the commission of a felony.
III
The Court of Appeals has erred in its decision to vacate one of this defendant’s convictions of felony-firearm. There is no need for us to state in detail the nature and extent of a defendant’s right to be free from double jeopardy. We have recently examined this subject in People v Robideau, 419 Mich 458; 355 NW2d 592 (1984), People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983), and People v Carter, 415 Mich 558; 330 NW2d 314 (1982). As in Wake ford, supra, p 111, the issue here is whether the Legislature intended to permit, under the circumstances of this case, entry of two convictions of felony-firearm. In the present case, the search for legislative intent begins and ends in the language of the statute:
(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.
(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.
(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1). [MCL 750.227b; MSA 28.424(2).]
We believe it clear that the Legislature intended, with only a few narrow exceptions, that every felony committed by a person possessing a firearm result in a felony-firearm conviction. Where, as here, the defendant is convicted of separate assaults, we perceive no reason why he may not also be convicted of separate counts of felony-firearm. The rule of lenity, relied upon in Adams, has no applicability in this case because of the clear and unambiguous expression of legislative intent found in the felony-firearm statute. Furthermore, vacating one such conviction does not reduce the defendant’s time of imprisonment. People v Sawyer, 410 Mich 531; 302 NW2d 534 (1981).
For these reasons, we reverse in part the judgment of the Court of Appeals and, in lieu of granting leave to appeal to the prosecution, we reinstate the defendant’s second conviction of felony-firearm. MCR 7.302(F)(1). Leave to appeal and leave to cross-appeal are in all other respects denied, because this Court is not persuaded that the questions presented should be reviewed by this Court.
Williams, C.J., and Ryan, Brickley, Cavanagh, Boyle, and Riley, JJ., concurred.
Levin, J.
The opinion of the Court states that "where a defendant has committed separate felonies during a single transaction, he may be con victed of [a separate] count of possession of a firearm” for "every felony committed” in the transaction. The opinion continues that the question is one of legislative intent and "the search for legislative intent begins and ends in the language of the statute:
"(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.”
Without further ado — without any consideration of alternative constructions — the Court states its conclusion: "We believe it is clear that the Legislature intended, with only a few narrow exceptions, that every felony committed by a person possessing a firearm result in a felony-firearm conviction. Where, as here, the defendant is convicted of separate assaults, we perceive no reason why he may not also be convicted of separate counts of felony-firearm.”
The statute does not state that "every felony committed by a person possessing a firearm [shall] result in a felony-firearm conviction.” Recognizing that, although the statute does not so state, that may indeed be the legislative intent and the meaning properly to be ascribed to the statutory language, the Court’s reformulation of the statutory language suggests at least that while the search for legislative intent "begins,” it does not "end in the language of the statute.” "The notion that because the words of a statute are plain, its mean ing is also plain, is merely pernicious oversimplification.”
Once again I "express my concern about the peremptory reversal of the judgment of the Court of Appeals.” "Peremptory reversal should be reserved for those cases for which the law is settled and no factual assessment is required. If leave to appeal were granted, there would be full briefing and oral argument. Notice would be provided to counsel representing other defendants affected by today’s decision who might seek to file a brief as amicus curiae.”
In the instant case, the law is not settled. There is no decision of this Court on the question presented and today decided in a conclusory statement and without plenary consideration. Nor have I been able to find a decision in another jurisdiction considering the question in the construction of another state’s felony-firearm or "armed criminal action” statute. While I believe we should defer consideration of the merits until plenary submission of the question, in light of today’s decision I suggest an alternative construction, one that does not require reversal of the Court of Appeals.
There are three elements of felony-firearm: (1) carrying or possessing a firearm, (2) at the time, (3) of commission or attempted commission of a felony. If, as I am inclined to believe, the gist of the offense of felony-firearm is unlawful carrying or possessing a firearm and the purpose of the felony-firearm statute is to enlarge, through the means of an additional conviction, the penalties for unlawful carrying or possessing when the person carrying or possessing commits a felony, the legislative purpose would be accomplished by construing the statute as requiring only one conviction and such enlargement without regard to whether the offender commits, in one transaction, one or more felonies.
There are a number of statutes proscribing carrying or possessing dangerous weapons. Section 226 of the Penal Code provides a five-year sentence upon conviction of going armed with a pistol or other firearm, etc., or any other dangerous or deadly weapon or instrument "with intent to use the same unlawfully against the person of another.” Section 227 provides a five-year sentence for carrying a concealed weapon. Section 227a makes it a felony for a person licensed to carry a pistol because engaged in the business of protecting the person or property of another to have the pistol in his possession while not actually so engaged. Section 233 makes it a misdemeanor "intentionally, without malice [to] point or aim any firearm at or toward any other persons.”
It is apparent that the Legislature concluded that these dangerous weapon provisions were not adequate, and that a mandatory minimum consecutive two-year sentence shall in all cases be imposed, through the means of an additional conviction, on a person unlawfully carrying or possessing a firearm who at that time commits a felony. Having in mind that apparent purpose, it is questionable whether the Legislature intended that this unlawful carrying and possessing statute be construed as requiring a separate felony-firearm conviction for each felony committed in a single transaction. The mandatory consecutive sentence is apparently imposed for carrying or possessing under the circumstance that a felony is committed, not for the felony.
If one focuses on the "carrying or possessing” or on the "at the time” verbiage of the statute rather than on the words "a felony,” it becomes apparent that the meaning is not so "clear and unambiguous” that the rule of lenity relied on by the Court of Appeals in People v Adams, 128 Mich App 25; 339 NW2d 687 (1983), and the instant case, is so clearly not applicable as not to require further explanation and plenary consideration.
The opinion of the Court recognizes that the sentences for the instant felony-firearm convictions run concurrently. It does not appear what purpose then is served — what legislative purpose is served —by multiple convictions of felony-firearm in respect to the same transaction.
These felony-firearm convictions arose out of separate felonious assault convictions. The Court may see this question as paralleling the question presented in People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983), where the Court saw each separate assault as a separate offense. The language of the Court’s opinion in the instant case may, however, extend to a case where there is no assault and where the firearm, carried or possessed, is neither brought into view nor aimed. The language of the opinion of the Court may be read as meaning that a person who breaks and enters an unoccupied building and commits property offenses therein, who neither unholsters, withdraws from his clothing, nor aims a firearm he is carrying or possessing, and who does not confront or assault another person while committing in one transaction multiple offenses against property, is subject to multiple firearm convictions. Again it does not appear what purpose the Legislature would seek to serve thereby.
I would either grant or deny leave to appeal.
People v Morton, unpublished opinion per curiam of the Court of Appeals, decided August 14, 1984 (Docket No. 72400).
A number of representatives and senators placed statements in their respective journals, but none spoke to the present issue. 1975 Journal of the House 1371-1372; 1976 Journal of the Senate 61-68.
For example, the felony-firearm statute excepts violations of MCL 750.227, 750.227a; MSA 28.424, 28.424(1).
United States v Monia, 317 US 424, 431; 63 S Ct 409; 87 L Ed 376 (1943) (Frankfurter, J., dissenting).
People v Hastings, 422 Mich 267, 273; 373 NW2d 533 (1985).
See Missouri Rev Stat, § 559.225 (1976 Supp).
MCL 750.226; MSA 28.423.
MCL 750.227; MSA 28.424.
MCL 750.235; MSA 28.432. | [
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Levin, J.
The issue is whether the Michigan Employment Relations Commission has exclusive jurisdiction of fair representation actions brought under the public employment relations act. We hold that the circuit court has concurrent jurisdiction with the merc.
The pera was modeled on the National Labor Relations Act. Under the nlra, courts have concurrent jurisdiction with the National Labor Relations Board of fair representation actions. There are a number of reasons for concurrent jurisdiction. The right of fair representation was developed judicially by the United States Supreme Court. The right concerns substantive matters not within the expertise of the nlrb or the merc and individual rights that might be better protected by the courts. The right is intertwined in the judicial enforcement of collective bargaining agreements.
We are not persuaded that an adequate reason for departing from the federal model in fair representation cases has been advanced. We hold that the circuit court has concurrent jurisdiction with the merc and, thus, that the merc does not have exclusive jurisdiction, and affirm the judgment of the Court of Appeals.
The Court of Appeals affirmed the decision of the circuit court vacating the arbitration award, that the plaintiff, Alvin Demings, challenged in this action. That arbitration award may not properly be vacated unless the defendant Police Officers Association of Michigan breached its duty of fair representation. Because the fair representation issue has not been tried, and the Court of Appeals addressed the questions presented on appeal in the context only of its review of the injunctive relief granted Demings and the denial of the poam’s motion for summary judgment, we remand the cause to the circuit court to determine whether the poam’s conduct violated the standards applicable in fair representation cases. See Goolsby v Detroit, 419 Mich 651, 682; 358 NW2d 856 (1984).
I
The Ecorse Police and Fire Commission promoted Demings to the position of detective on May 5, 1980. At the time, Demings was the patrolman with the highest seniority. Corporal Frank Chirillo, however, had more departmental seniority, and he filed a grievance, claiming that the promotion of Demings violated the terms of the collective bargaining agreement between Ecorse and the poam. The poam was the exclusive bargaining agent for both Demings and Chirillo.
The poam pursued Chirillo’s grievance to arbitration, contending that Demings’ promotion violated the collective bargaining agreement because of Ecorse’s failure to post and fill the job opening as required in the agreement. In February, 1981, Chirillo’s grievance was submitted to arbitration. Demings attempted to appear at the hearing with his attorney, but the poam succeeded in having him excluded. Demings was allowed to submit his arguments in writing. In March, 1981, the arbitrator ruled in Chirillo’s favor. The award stated that "[t]he employer shall reconsider the promotion of Officer Demings by offering the Detective position filled by Demings to the most senior qualified member of the bargaining unit, if other than Demings.” In June, 1981, Ecorse rescinded plaintiff’s promotion and resolved to keep the detective position vacant.
Following his demotion, Demings requested that the poam employ the grievance arbitration procedure in his behalf, but the poam refused. The contract allows only the poam to invoke the grievance arbitration procedure. Demings filed an action in circuit court, alleging that the poam had breached its duty of fair representation by having him excluded from the Chirillo arbitration, by refusing to file his grievance, and by challenging his promotion, but not others in the same position. An injunction "to preserve the status quo by restraining [Ecorse] from demoting” him was sought. Demings also claimed that Ecorse violated the collective bargaining agreement by demoting him and that Ecorse and the poam discriminated against him on the basis of race. The breach of contract and racial discrimination claims are not involved in this appeal. The poam filed an answer to the motion for injunction and moved for "accel erated and/or summary judgment” claiming that the circuit court lacked jurisdiction.
The circuit court denied the poam’s motion for accelerated and summary judgment, issued a temporary injunction, subsequently entered as a final order, and set aside the arbitration award, finding that the exclusion of Demings was arbitrary and capricious and, therefore, a violation of due process. The order restored Demings to the position of detective, retroactive to the date of his demotion.
The Court of Appeals concluded that the merc did not have exclusive jurisdiction and affirmed.
II
Goolsby v Detroit, 419 Mich 660-661, n 5, summarizes the relationship between the nlra and the pera in general, and provisions of the two acts governing the right of fair representation in particular:
The rights and responsibilities imposed on labor organizations representing private sector employees by statutes like the National Labor Relations Act, 29 USC 151 et seq., and the Railway Labor Act, 45 USC 151 et seq., and by the national labor policies which those statutes implement impliedly impose on labor organizations representing private sector employees a duty of fair representation.
Similarly, our labor mediation act, MCL 423.1 et seq., MSA 17.454(1) et seq., and public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., are patterned after the nlra. Thus, this Court has stated that in construing our state labor statutes we look for guidance to "the construction placed on the analogous provisions of the nlra by the [National Labor Relations Board] and the Federal courts.” Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 636; 227 NW2d 736 (1975).
. . . Consequently, since the rights and responsibilities imposed on labor organizations representing public sector employees by pera . . . are similar to those imposed on labor organizations representing private sector employees by the nlra, it must be concluded that pera impliedly imposes on labor organizations representing public sector employees a duty of fair representation which is similar to the duty imposed by the nlra ....
It is not suggested that the Legislature has, in defining the origin and nature of the substantive right of fair representation, departed from the federal model. The pera provisions that give rise to the right of fair representation are replicas of the federal provisions. The nature of the right of fair representation, as developed by the Michigan and federal courts, also appears to be substantially the same. It does not appear that the Legislature intended to depart from the federal approach in respect to, and only in respect to, the jurisdiction of the courts in fair representation actions brought by public employees.
Ill
The general rule is that the nlrb has exclusive jurisdiction of unfair labor practice charges. The federal courts and the states must defer to the administrative agency. This "preemption doctrine was created to permit administrative agencies to develop rules within their area of expertise which would be enforced uniformly.”
Nevertheless, exceptions to the rule of exclusive agency jurisdiction of unfair labor practices have developed. In Vaca v Sipes, 386 US 171, 188; 87 S Ct 903; 17 L Ed 2d 842 (1967), the United States Supreme Court held that "the unique role played by the duty of fair representation doctrine in the scheme of federal labor laws, and its important relationship to the judicial enforcement of collective bargaining agreements in the context presented here, render the . . . pre-emption doctrine inapplicable.” The courts, both state and federal, have concurrent jurisdiction of fair representation actions.
A
The plaintiff in Vaca, Benjamin Owens, had been refused reemployment after a long sick leave. When the union decided not to take Owen’s grievance to arbitration, he filed an action in a Missouri court, alleging that he had been discharged from his employment in violation of the collective bargaining agreement and that the union had breached its duty of fair representation. Included in the union’s answer was the defense that the Missouri courts lacked jurisdiction because Owens was essentially claiming that the union had engaged in unfair labor practices within the exclusive jurisdiction of the nlrb.
The United States Supreme Court elaborated at least four reasons for rejecting exclusive agency jurisdiction and distinguishing the right of fair representation from other unfair labor practices. First, "[t]he doctrine was judicially developed” and "the board adopted and applied the doctrine as it had been developed by the federal courts.” Second, fair representation actions involve review of substantive areas not within the field of expertise of the board. Third, the courts are the best protectors of individual rights including enforcement of the right to fair representation. Finally, the right of fair representation figures prominently in breach of contract actions under § 301, and it would be incongruous for "a court that has litigated the fault of the employer and union to fashion a remedy only with respect to the employer.”
The Court’s reliance on the judicial origin of the right of fair representation should not be misunderstood. The Court was not saying that the right is purely a common-law right. The right is "the product of a federal common law of statutory origin.” How this hybrid is classified is not of critical importance. It does not appear that the Court was concerned with whether the right of fair representation is a pure common-law right or a common-law right statutorily derived. What was important is that the right was originally devised and enforced by courts. The nlrb had no involvement in the creation or early enforcement of the right of fair representation; the board merely "adopted and applied” the judicial doctrine.
The early history of the enforcement of the right of fair representation in Michigan is similar. Albeit in cases arising under the nlra, the right of fair representation was recognized in this state before 1973, when unfair labor practices by unions were brought under the jurisdiction of the merc. As a result, trial and appellate courts of this state had experience adjudicating fair representation claims before the merc obtained any jurisdiction.
The Court, adverting to the judicial origin of the right of fair representation, concluded that when the nlrb is enforcing a judicially developed doctrine, "it is safe to presume that judicial supervision will not disserve the interests promoted by the federal labor statutes.” A primary justification for preemption is undoubtedly to avoid conflicting rules of law. The Court noted in Vaca that this concern is not "applicable” to fair representation actions. The reason is that a court, not an agency, defined the extent of the obligation, and the agency had not altered the original formulation.
The agency’s lack of expertise concerning the matters at issue in a fair representation action is the second reason the Court gave for allowing the courts concurrent jurisdiction. Agency expertise has been a primary justification for exclusive jurisdiction of other unfair labor practices. Fair representation actions, however, involve review of the union’s administration of the grievance machinery. "[A]s these matters are not normally within the Board’s unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision.”
The Court’s analysis of the absence of administrative expertise in fair representation actions is as applicable to the merc as it is to the nlrb. Where deference is accorded the merc, it is based on the expertise the agency has developed in the area. But like the nlrb, the merc has no more expertise than the courts in fair representation cases. As the Court of Appeals noted, these "rights are usually enforced by courts, not by administrative agencies. There is no reason to believe that merc’s expertise in handling fair representation claims exceeds that of the courts.”
The Court’s third reason for rejecting exclusive jurisdiction also relates to the institutional capacities of the two forums. The Court suggested in Vaca that courts are better able to protect the rights of individual employees than agencies: "The collective bargaining system as encouraged by Congress and administered by the nlrb of necessity subordinates the interests of an individual employee to the collective interests of all employees in the bargaining unit.” In terms of protecting individual employee rights, "the duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” The Court concluded that it is not enough to have this right enforced by the board. "Were we to hold, as petitioners and the Government urge, that the courts are foreclosed . . . from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint.”
While this passage can be interpreted more narrowly, we believe its full import was elucidated by this Court in Bebensee v Ross Pierce Electric, Inc, 400 Mich 233, 249, n 7; 253 NW2d 633 (1977). After quoting the relevant section in Vaca, this Court noted: "In other words, the structure of the nlra quite properly emphasizes the protection of the collective interest of workers. The courts must remain a forum where the employee can present, complaints of abuse of his individual rights by the union.” The Court in Vaca recognized the institutional differences between courts and an administrative agency and concluded that courts were more concerned with individual rights. This factor figured prominently in the Vaca decision that there was concurrent jurisdiction, and should be accorded similar consideration in our decision. The institutional argument is as applicable to the merc as it is to the nlrb. Once again, we agree with the observation of the Court of Appeals: "merc’s resources may be allocated in such a way that fair representation claims are not accorded the same attention or priority that claims affecting a bargaining unit at large are.”
The United States Supreme Court also considered the congruity of allowing an employee to maintain a complaint against the employer in the courts and against the union before only the board where the factual predicate is essentially the same, and concluded:
JXJt is obvious that the courts will be compelled to pass upon whether there has been a breach of the duty of fair representation in the context of many § 301 breach-of-contract actions. If a breach of duty by the union and a breach of contract by the employer are proven, the court must fashion an appropriate remedy. . . . What possible sense could there be in a rule which would permit a court that has litigated the fault of the employer and union to fashion a remedy only with respect to the employer? Under such a rule, either the employer would be compelled by the court to pay for the union’s wrong — slight deterrence, indeed, to future union misconduct — or the injured employee would be forced to go to two tribunals to repair a single injury.[ ]
This scenario describes exactly what happened in the instant case. Demings combined a breach of contract action against the employer with a breach of the duty of fair representation action against the union. This combination is quite common and is another reason for allowing the courts concurrent jurisdiction both in private and public sector breach of fair representation claims.
B
The foregoing examination of the Vaca opinion reasoning, and our conclusion that the reasoning of that opinion is equally valid in the context of the pera (which was modeled on the nlra), leads us to conclude that the courts have concurrent jurisdiction. This is consistent with this Court’s opinion in Goolsby. In the course of that decision defining the substance of the right of fair representation, this Court made the following observations concerning jurisdiction:
In this state, a person claiming that a labor organization has breached its duty of fair representation can institute an administrative or a judicial proceeding, the former by filing an unfair labor practice charge with the nlrb or the merc, the latter by filing a complaint with a federal district or state circuit court.[ ]
IV
The dissenting justices rely on "significant” differences between the private sector and public sector employee labor law under the pera to justify the conclusion that the merc has exclusive jurisdiction of unfair representation claims.
A
The dissenting justices maintain that the Congress did not express an intent that the nlrb’s exclusive jurisdiction extend to unfair representation claims because when Congress, in 1947, gave the nlrb exclusive jurisdiction of unfair labor practices by unions, unfair representation had not yet been recognized by the nlrb as an unfair labor practice. In contrast, legislative intent to extend to the merc exclusive jurisdiction of union unfair representation actions can be inferred because the Legislature made unlawful unfair union labor practices in 1973, eleven years after the nlrb recognized unfair representation as an unfair labor practice.
The Court in Vaca did indeed note that when the nlrb was given exclusive jurisdiction of unfair labor practices, the nlrb had not yet considered breach of the duty of fair representation to be an unfair labor practice. The Court, however, used the timing of the various provisions to show that a mechanistic reading of the statutory language must be avoided. Because, in 1947, the breach of the duty of fair representation had not been recognized as an unfair labor practice, and could not be so recognized on the basis of the language enacted,one could not sensibly infer that the Congress had intended that the nlrb have exclusive jurisdiction of right of fair representation cases. The Court did not advance the timing argument as proof of legislative intent, but rather to show that a mechanistic reading of the statute would not resolve the question whether the Congress intended the right of fair representation to be within the exclusive jurisdiction of the nlrb. To answer that question, the Court looked to the reasons for exclusive jurisdiction of other unfair labor practices and concluded these reasons did not apply to the right of fair representation. The timing argument is the beginning, not the end, of the Court’s analysis.
The dissenting justices argue that because breach of the duty of fair representation was recognized by the United States Supreme Court as an unfair labor practice before, not after, the nlrb was given jurisdiction of unfair labor practices, it is proper to infer that the Legislature in enacting the pera did intend to treat all unfair practices alike. This, we believe, misconstrues Vaca. The Court was not there suggesting that but for the timing problem the Congress should be presumed to have intended to have included the right of fair representation in the grant to the nlrb of exclusive jurisdiction of unfair labor practices. To resolve the question of legislative intent, the Court examined the underlying reasons for exclusive jurisdiction.
The timing argument, in the dissenting opinion, is flawed for other reasons including the omission of an important date. Between the time breach of the duty of fair representation was found by the United States Supreme Court to be an unfair labor practice and the time when the merc was given jurisdiction of unfair labor practices by unions, the United States Supreme Court decided in Vaca that the fair representation claims were an exception to the general rule that the nlrb has exclusive jurisdiction. In drafting the pera, the Legislature, as this Court has often noted, indicated an intent to follow the federal model. The provisions of the act were replicas of the nlra, and it is fair to conclude that the Legislature intended them to be interpreted similarly.
B
The dissenting justices also deem it to be a "significant” reason for departing from the federal framework that "the Vaca Court noted that the nlrb’s general counsel has unreviewable discretion in choosing to institute an unfair labor complaint and [that] there is no assurance that aggrieved employees would obtain review for their complaints,” while the pera provides for review of a merc decision "under the competent, material and substantial evidence standard.”
The Court in Vaca did say that if courts were foreclosed from review of right of fair representa tion actions, "the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review . . . since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint.” This statement was part of a larger argument in which the Court suggested that courts can be more safely trusted with protecting individual rights than a labor board, because the "principal concern” of the nlrb is the "public interest in effectuating the policies of the federal labor laws, not the wrong done the individual employee . . . .”
The argument in the dissenting opinion shows only that according exclusive jurisdiction to the merc would not be as inappropriate as according the nlrb exclusive jurisdiction, but it does not address the arguments set forth in the Court’s Vaca opinion that the courts are the better and more appropriate forum for adjudicating fair representation claims.
C
The dissenting opinion states, "We have repeatedly interpreted this section [§ 16 which states that violations of § 10 shall be deemed to be unfair labor practices remediable by the commission] as vesting the merc with exclusive jurisdiction.” The cases cited do indeed state that "[t]he Michigan Employment Relations Commission has exclusive jurisdiction of unfair labor practices.” None of the cases cited, however, concern fair representation claims. The right of fair representation is not discussed even in dicta. Undoubtedly, the merc has exclusive jurisdiction of unfair labor practice claims in general. Fair representation claims are, however, a well-recognized exception.
V
A disturbing consequence of departing from the federal model, would be that the only unionized workers limited to an agency remedy and denied the opportunity to maintain an action in court would be those in the public sector. Employees employed in the private sector under the nlra can file a petition with the nlrb or an action in a United States district court or a state trial court. Employees in the private sector not covered by the nlra may file an unfair representation claim in the circuit court. Only public employees would be limited to a merc proceeding.
There is no reason to suppose that the unions that represent public employees are different from those representing private sector employees in terms of the need or desirability of providing a judicial remedy as an alternative to a petition with the merc asserting an unfair labor practice. There is no reason to suppose that the merc more so than the nlrb can be entrusted with exclusive responsibility of protecting the individual rights of union members.
The Legislature did not intend that public employees be treated differently under the pera, a statute modeled on the nlra, from private employees in fair representation cases. The pera requires, rather, that they be treated the same.
In sum, we hold that the merc does not have exclusive jurisdiction of fair representation claims arising under the pera. The pera is based on a federal model that allows concurrent jurisdiction of fair representation actions. There is no indication that the Legislature intended to depart from the federal model.
The judgment of the Court of Appeals is, therefore, affirmed on this issue.
VI
The final issue is the validity of the circuit court’s decision to vacate the arbitration award on the ground that it was arbitrary and capricious to exclude Demings from the proceeding that would eventually result in the rescission of his promotion. If the poam violated the right of fair representation, the circuit court might vacate the arbitration award. If the poam did not violate Demings’ right of fair representation, the arbitration award must stand. The fair representation issue has not, however, been tried.
At a hearing on Demings’ request for a preliminary injunction, the circuit court said, "[Wjhen you bar a man [from a proceeding] in which his job and his livelihood is [sic] involved, and he is demoted as a result of a decision, you will never convince me he hasn’t been deprived of his fundamental due process of law.” A temporary injunction was then issued and the arbitration set aside "for the reason that the same is arbitrary and capricious in that the plaintiff, Alvin Demings, and his attorney were excluded from the hearing . . . in violation of plaintiffs fundamental rights to due process and legal counsel.” The circuit court entered the provisions of the preliminary injunction as a final order. At the same time, it denied the poam’s motions for accelerated and summary judgment.
The Court of Appeals, examining the right of fair representation issue only in the context of the injunctive relief granted Demings and the accelerated and summary judgment motions, affirmed and said: "[Taking] [e]very well-pleaded allegation ... as true . . ., factual development can possibly justify a right to recovery” on an unfair representation claim. The "factual development” referred to by the Court of Appeals has not, however, taken place._
In this Court, Demings seeks to have us adopt, as a matter of law, a rule that exclusion from an arbitration hearing constitutes a violation of the right of fair representation, "[wjhen an exclusive representative takes a position at arbitration in direct conflict with the critical interests of a lone employee . . . .” We decline to adopt a per se rule.
As noted earlier, the Legislature adopted the federal model in right of fair representation actions. See Goolsby v Detroit, 419 Mich 660-661, n 5. The United States Supreme Court has concluded that per se rules have no place in this peculiarly fact-bound inquiry. In Vaca the Court rejected a per se rule that would grant an employee an absolute right to have his grievance taken to arbitration, because, for the grievance machinery to work properly, the union must be given considerable discretion to determine which grievances to press and which to abandon. Vaca v Sipes, 386 US 190-191. In an earlier case, the Court also said that there was no per se rule against a union taking a position in direct conflict with the interests of one of the employees it represents:
[W]e are not ready to find a breach of the collective bargaining agent’s duty of fair representation in taking a good faith position contrary to that of some individuals whom it represents nor in supporting the position of one group of employees against that of another. [Humphrey v Moore, 375 US 335, 349; 84 S Ct 363; 11 L Ed 2d 370 (1964).]
The cause is remanded to the circuit court to determine whether the poam’s conduct violated the standards in fair representation actions. See Goolsby v Detroit, 419 Mich 682.
VII
We affirm the Court of Appeals decision that the circuit court has concurrent jurisdiction with the merc. We remand the cause to the circuit court to determine whether there has been a violation of Demings’ right of fair representation.
Williams, C.J., and Ryan and Brickley, JJ., concurred with Levin, J.
San Diego Bldg Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 3 L Ed 2d 775 (1959); Bebensee v Ross Pierce Electric, Inc, 400 Mich 233, 241; 253 NW2d 633 (1977).
Morris, The Developing Labor Law, p 1316.
Id. at 181.
Id.
Id. at 182.
Id. at 187.
Morris, n 2 supra at 1285.
Vaca, 386 US 181; Bebensee, 400 Mich 249 ("fair representation doctrine was judicially developed”); Gorman, Labor Law, p 704.
See Cortez v Ford Motor Co, 349 Mich 108, 123; 84 NW2d 523 (1957), stating "that individual members of the union may under certain circumstances enforce fair and proper representation of their interests on the part of their union representatives by legal action.” See also Field v Local 652 UAW AFL-CIO, 6 Mich App 140, 147; 148 NW2d 552 (1967), where an employee alleged that he had not been fairly represented by the union, and the Court of Appeals held, "State courts have jurisdiction over the subject matter of this suit. . . .”
Motor Coach Employees v Lockridge, 403 US 274, 297-298; 91 S Ct 1909; 29 L Ed 2d 473 (1971). Bebensee, 400 Mich 249.
Vaca, 386 US 181.
See Bebensee, 400 Mich 249, stating that "[t]he fact that both a court and the nlrb would look to the same body of Federal law would significantly reduce the potential for conflict.”
Vaca, 386 US 181. The duty or right of fair representation was first recognized in Steele v Louisville & N R Co, 323 US 192; 65 S Ct 226; 89 L Ed 173 (1944). See also Harrison v Arrow Metal Products Corp, 20 Mich App 590, 626; 174 NW2d 875 (1969); Gorman, supra at 699, 704.
See Rockwell v Crestwood School Dist, 393 Mich 616, 630; 227 NW2d 736 (1975).
Demings v City of Ecorse, 127 Mich App 608, 622; 339 NW2d 498 (1983).
Vaca, 386 US 182.
Id.
Id.
Demings, 127 Mich App 622.
Vaca, 386 US 187.
Goolsby, 419 Mich 665, n 6.
Vaca, 386 US 177.
Rockwell v Crestwood School Dist Bd of Ed, n 14 supra, 636, where the Court said that it will look for guidance to "the construction placed on the analogous provisions of the nlra by the nlrb and the Federal courts.”
Id.
Vaca, 386 US 182.
Id. at 182, n 8.
Detroit Bd of Ed v Parks, 417 Mich 268, 283; 335 NW2d 641 (1983).
See Saginaro v Attorney General, 87 NJ 480, 488-489; 435 A2d 1134 (1981).
In this Court, Demings, although adverting in his statement of the issue to an alleged due process right, does not present a traditional due process analysis, i.e., whether there is state action, whether he has a property right warranting constitutional protection, and whether available procedures are adequate. He relies rather on cases where unions were found to have violated their duty of fair representation.
See Saginaro v Attorney General, n 28 supra at 488 ("Nowhere does Vaca suggest that the employee be allowed to intervene in the arbitration procedure.”).
The question whether there should be any modification of the orders that have been entered by the circuit court will depend on the outcome of the trial on the fair representation issue. Demings’ present status is unclear; the question whether the orders previously entered should be continued or modified during the further pendency of their proceedings is for the circuit court to decide. We intimate no opinion thereon. | [
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Memorandum Opinion. We granted leave in this declaratory judgment case to decide whether the State of Michigan, Department of Social Services, may constitutionally require the Emmanuel Baptist Bible Church and its preschool to obtain a license and comply with certain administrative rules in order to operate their preschool and daycare programs. Defendant objects to the license requirement and to certain administrative rules promulgated pursuant to the childcare organization act, 1973 PA 116, on the ground that the statute and rules violate its constitutional rights to religious freedom contained in the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment. The particular rules objected to are Rule 400.5104, which sets educational qualifications for program directors; Rule 400.5106, which requires day-care centers to provide a program for emotional development of children "including [a] positive self-concept;” and Rule 400.5107, which prohibits corporal punishment. The defendant also objects to §§ 2(3)(c) and 5(1) of the act, MCL 722.112(3)(c); MSA 25.358(12)(3)(c), and MCL 722.115(1); MSA 25.358(15)(1), to the extent that the provisions give the dss authority to inspect the financial records of the defendant.
From September 15, 1974, to June 1, 1979, the church’s preschool was licensed by the dss to operate as a "childcare center” under 1973 PA 116 to care for twenty children from two and one-half through six years of age. During those years the format of the church’s preschool and day-care programs varied somewhat. Initially, the preschool program was operated on a half-day, morning basis. By the time of application for the second renewal of a license in 1975, the defendant operated a full-day program, presumably as a day-care center, along with the preschool half-day program. In 1978, twenty to forty children were in the preschool and about ten children remained in the afternoon for day care.
On May 18, 1978, the defendant was issued a two-year license by the dss. However, on May 3, 1979, the principal of the Emmanuel Baptist Preschool, Mr. Mark Asiré, informed representatives of the dss that the defendant no longer wanted its preschool and day-care center to be licensed. This assertion was subsequently confirmed by the church’s pastor, Rev. Harold E. Asiré. On November 8, 1979, the dss "closed” the license of the preschool to operate as a childcare center, effective June 1, 1979. However, the church continued thereafter to conduct its preschool/day-care programs until the time of trial in December, 1982. From 1980 to 1982, twelve to twenty-eight children were in defendant’s preschool or day-care programs.
The dss filed the instant action against defendant on April 29, 1980, seeking a declaratory judgment that defendant is subject to the requirements of the childcare organization act, 1973 PA 116, and. seeking a preliminary and permanent injunction enjoining defendant from operating or maintaining a childcare center without a license from the dss. Defendant raised as affirmative defenses that the Legislature had improperly delegated licensing authority to the dss, that the act was unconstitutional under the First Amendment as applied to defendant, and that the administrative rules enumerated above infringed upon its First Amendment rights.
Following a bench trial, the trial court issued a written opinion on January 19, 1984. The court specifically found that defendant’s preschool and day-care programs constituted "religiously grounded” activity. Nevertheless, it held that defendant was required to obtain a license to operate its preschool/day-care programs on the ground that the state had a compelling interest in protecting children in childcare centers which outweighed defendant’s interest in being free from such state regulation.
The trial court also decided, however, that the administrative rules relating to director qualifications, program content, and corporal punishment, as well as the statutory provisions relating to inspection of financial records, should not be applied to this defendant. The court held that the state "should develop and employ less intrusive means of regulating a church-operated day-care center .... In all other respects Defendant Church should be required to obtain a license from [the] dss and to comply with reasonable regulations of fire, safety and health requirements of the Act.”
On appeal in the Court of Appeals, the dss challenged that portion of the trial court’s order which held that defendant was exempt from particular rules and statutory provisions. Defendant filed a cross-appeal challenging the underlying licensing requirement of the act.
In its opinion, the Court of Appeals agreed with the circuit court that the defendant’s "claim is undoubtedly rooted in [its] fundamentalist Christian doctrine. Moreover, regulation poses some burden on the free exercise of religion . . . .” 150 Mich App 254, 264; 388 NW2d 326 (1986). However, the Court of Appeals found that the state’s interest in protecting children outweighed the burden imposed on the defendant’s First Amendment rights. The Court of Appeals thus affirmed' the trial court’s requirement of licensure but reversed the trial court’s ruling on exemptions. We then granted leave to appeal. 428 Mich 909 (1987).
A unanimous Court holds that the regulation prohibiting corporal punishment is justified by a compelling state interest and may be enforced.
A majority of the justices is of the opinion that
(1) The First and Fourteenth Amendments do not prevent the state from compelling the defendant to conform to the licensure requirements of the childcare organization act.
(2) The state may not enforce the accreditation aspects of the program director qualification rule, 1980 AACS, R 400.5104(2)(a), since to do so would violate the free exercise of religious beliefs of the defendants.
(3) The state may not enforce the program content rule, 1980 AACS, R 400.5106(l)(c), since the rule is unconstitutionally vague and unconstitutionally overbroad.
The Court does not decide whether the financial disclosure provisions violate the defendants’ rights of the free exercise of religion and freedom of association, since the state has not exercised its statutory authority to compel financial disclosure, making these issues unripe for review.
At least four justices concur in every holding statement.
Riley, C.J., and Levin, Brickley, Cavanagh, Boyle, Archer, and Griffin, concurred.
For convenience, the entities are sometimes hereinafter referred to as the "defendant” or the "church.”
As amended by 1978 PA 438; 1980 PA 32, 232, 510; 1981 PA 126; 1984 PA 139. MCL 722.111 et seq.; MSA 25.358(11) et seq.
1980 AACS, R 400.5104.
1980 AACS, R 400.5106.
1980 AACS, R 400.5107.
The administrative rules which govern childcare centers were promulgated pursuant to authority granted in the childcare organization act, MCL 722.112; MSA 25.358(12), effective June 4, 1980. 1980 AACS, R 400.5101 etseq. | [
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Boyle, J.
The question before the Court is whether the forfeiture set-aside provision of MCL 765.15(a); MSA 28.902(a) applies in cases where a criminal defendant’s release was secured by the posting of a surety bond with the trial court. We hold, that the set-aside provision applies only where the defendant’s release was obtained by the placement of cash, a check, or certain securities on deposit with the trial court, pursuant to MCL 765.12; MSA 28.899, in lieu of the more typical surety bond.
i
On September 9, 1985, defendant Pearl Evans failed to appear for habitual offender proceedings. At the time, she was free on a $15,000 surety bond posted by defendants Edward and Katherine Kosciuszko, doing business as Kozy Bail Bond. The judge issued an order forfeiting the bond on September 18, 1985.
Plaintiff filed a motion for entry of judgment against the surety. A hearing on the motion was held on February 10, 1986, after two postponements. At the hearing, Kozy’s counsel stated that his client was confident he could locate Evans, and requested a sixty-day extension of the hearing. The trial judge instead agreed to stay execution of the judgment of forfeiture for sixty days. It appears from the record that the judge believed he could amend the judgment of forfeiture under MCL 765.28; MSA 28.915, if Kozy eventually produced Evans. The judgment of forfeiture with a sixty-day stay was signed on March 12, 1986. Evans was apprehended through the efforts of Kozy and returned to custody on May 7, 1986. Kozy spent $6,500 to locate and apprehend Evans.
Kozy made no effort to secure remission of the forfeited bond until February 17, 1987, when it filed a motion to set aside the forfeiture and judgment. Kozy argued that it was entitled to remission of the forfeited bond because it had produced Evans within sixty days of the March 12, 1986, judgment, and, in the alternative, because it had satisfied the requirements for remission of forfeited bonds under MCL 765.15; MSA 28.902. This statute provides:
(a) If such bond or bail be forfeited, the court shall enter an order upon its records directing, within 45 days of the order, the disposition of such cash, check or security, and the treasurer or clerk, upon presentation of a certified copy of such order, shall make disposition thereof. The court shall set aside the forfeiture and discharge the bail or bond, within 1 year from the time of the forfeiture judgment, in accordance with subsection (b) of this section if the person who forfeited bond or bail is apprehended and the ends of justice have not been thwarted and the county has been repaid its costs for apprehending the person.
(b) If such bond or bail be discharged, the court shall enter an order to that effect with a statement of the amount to be returned to the depositor. Upon presentation of a certified copy of such order, the treasurer or clerk having such cash, check or security shall pay or deliver the same to the person named therein or to his order.
(c) In case such cash, check or security shall be in the hands of the sheriff or any officer, other than such treasurer or clerk, at the time it is declared discharged or forfeited, the officer holding the same shall make such disposition thereof as the court shall order, upon presentation of a certified copy of the order of the court. [MCL 765.15; MSA 28.902. Emphasis added.]
In arguing that § 15 applied, Kozy relied on People v Pavlak, 99 Mich App 190; 297 NW2d 878 (1980). The Court in Pavlak disagreed with a decision of another panel of the Court of Appeals which held that § 15 did not apply to commercial surety bonds. People v Johnson, 72 Mich App 702; 250 NW2d 508 (1976). After considering arguments from counsel on Kozy’s motion of February 23, 1987, the trial court entered an "amended judgment” on March 11, 1987, that stated, in part:
It is hereby ordered pursuant to MCL 765.28 [MSA 28.915] that the Judgment previously entered on March 12, 1986 against Surety is hereby modified such that the surety shall pay to the County of Bay $15,000.00, plus 12% interest from October 8, 1985 but the Surety is hereby entitled to a setoff of $6,500.00 against that sum for its expenses in locating and returning Pearl Lee Evans to custody.
Kozy appealed this amended judgment in the Court of Appeals. The Court of Appeals agreed with the panel in Pavlak and decided that the trial judge should have remitted Kozy’s bond under § 15. People v Evans, 168 Mich App 654; 425 NW2d 209 (1988). The Court of Appeals certified that its decision conflicted with that of the panel in Johnson, and we granted plaintiff’s application for leave to appeal.
n
The statutory provision which we construe today, § 15 of chapter V of the Code of Criminal Procedure, MCL 765.1 et seq.; MSA 28.888 et seq., is one of a number of sections within that chapter which concern the right of a party to deposit cash, a check, or certain negotiable securities with a trial court in order to secure a defendant’s release when bail is either required or permitted. Sections 12 through 18 of Chapter V were originally enacted together in 1919, in substantially the same form in which they exist today, as a single, comprehensive act entitled:
An act to provide for the furnishing and acceptance of cash, certified checks or certain obligations of the United States government or of municipal corporations in lieu of bonds or bail of other character required or permitted by law. [1919 PA 332.][ ]
They are thus considered "in pari materia,” and as such must be read and construed together. Wayne Co v Dep’t of Social Welfare, 343 Mich 475, 480; 72 NW2d 200 (1955); Van Antwerp v State, 334 Mich 593, 605; 55 NW2d 108 (1952).
The first of these sections, § 12, establishes the right of a party to deposit cash, a check, or certain [negotiable] securities with the court, "in lieu” of other forms of bond or bail:
In any criminal cause or proceeding where bond or bail of any character is required or permitted for any purpose, the party or parties required or permitted to furnish such bail or bond may deposit, in lieu thereof, in the manner herein provided, cash, certified check on any state or national bank in this state, obligations of the United States government negotiable by delivery or bonds of any municipality of this state negotiable by delivery, equal in amount to the amount of the bond or bail so required or permitted.
Section 13 describes the procedure to be followed in depositing "[s]uch cash, check or security” with the court, which must then, under § 14, treat the deposit as the equivalent of the bond or bail "in lieu” of which it has been deposited.
Section 15, the provision at issue in this case, addresses what happens to the "cash, check or security” in the event of either a forfeiture or a discharge of the "bond or bail.” Section 16 provides that the "[c]ash, check[ ] or securit[y]” deposited with the court shall not be subject to garnishment or attachment, although it may be assignable under certain circumstances. Section 17 provides that the deposit is to be placed in a special fund, the interest on which is to be received by the state or local government "according to the nature of the case,” except that interest coupons attached to the government bonds or securities may not be detached. Lastly, § 18 allows any depositor to redeem the cash, check, or securities deposited with the court by "substituting the bond originally required or permitted.”
The question in this case concerns the applicability of the second sentence in § 15(a), which states that the court "shall set aside the forfeiture and discharge the bail or bond, within 1 year from the time of the forfeiture judgment” if certain conditions are met. This sentence was not a part of the original 1919 legislation; it was added to § 15(a) by 1970 PA 226.
The defendant-surety contends, and the Court of Appeals has agreed, that this later-enacted set-aside provision is not limited in application to situations in which cash, checks, or certain securities have been deposited with the court on a defendant’s behalf, but applies even where the defendant’s release was obtained by the execution of a surety bond with the court. In our opinion, to conclude that § 15(a), or any part of it, was ever intended to apply in cases where cash, checks, or certain securities were not actually placed on deposit with the court greatly exalts form over substance and completely fails to recognize the limited application of, and the relationship among, §§ 12 through 18.
A
Prior to the addition in 1970 of the set-aside provision, § 15 plainly was intended to apply only where cash, checks, or securities had been deposited with the court. Nothing makes this conclusion more clear than the fact that all of the other sections with which it was originally enacted were, and still are, exclusively concerned with deposits with the court.
As explained above, § 12 creates the right to deposit such instruments; § 13 describes the procedures for doing so; § 14 makes the deposit the equivalent of bond or bail; § 16 prohibits garnishment or attachment of the deposits, but allows assignment in certain circumstances; § 17 explains who collects interest on the deposits; and § 18 allows a depositor to regain the cash, checks, or securities by substituting the bond originally required. Is it possible, remembering that these provisions are in pari materia and thus to be considered together, Wayne Co, supra, that § 15 is to be read as applicable to something different from these others? We think not.
Moreover, the procedures established in that section with respect to forfeiture and discharge clearly contemplated the court’s having to direct the disposition of — i.e., to order the clerk or treasurer to either keep or return — that which has been deposited with it. While a surety bond is executed with the court in exchange for the defendant’s release, it is not "deposited” with the court in the sense that something needs to be "returned” to the surety by the treasurer or clerk, who will "pay or deliver” it to the surety or to its order.
The question thus becomes whether the set-aside provision itself, which was added to § 15(a) in 1970, was intended to apply both to deposits and surety bonds. We reject this contention, however, because we do not believe that the Legislature would have placed a set-aside provision intended to apply to surety bonds, or any other sort of bail, in the midst of a number of sections whose application until then had been limited to deposits of cash, checks, or securities.
Indeed, for us to conclude that the forfeiture set-aside clause alone among these other provisions applied in all bail or bond cases, and not just those involving deposits with the court, would violate well-established rules of statutory construction regarding amendatory language. As explained in 1A Sands, Sutherland Statutory Construction (4th ed), §22.35, pp 296-297, "[i]n the absence of express evidence to the contrary, the section as amended is to be construed to have the same scope as the unaltered sections of the original statute. The unchanged sections and the amendment are to be interpreted so that they do not conflict.” Or, as stated by this Court in People ex rel Attorney General v Michigan Central R Co, 145 Mich 140, 150; 108 NW 772 (1905):
[Generally, an] amendment [of a statute] is to be considered as a part of the original act, and the entire act as amended ... be given the construction as if the amendment was a part of the original act.
What this means is that in the absence of any indication to the contrary, we must assume that the amendment of § 15(a), i.e., the set-aside provision, was intended to be as limited in scope as those sections of which it became a part.
It is no answer to say that the Legislature may not have realized that the section into which it was placing the forfeiture provision until then had applied only where deposits had been made with the court. In our opinion, the relationship among these seven sections (§§ 12-18), and their "separateness” from the other sections in chapter V, is obvious. One need not be aware of the particular history of these sections to recognize that relationship and limited application. Plainly, the set-aside provision itself applies only where there are deposits of cash, checks, or securities with the court.
B
Despite the limited scope of § 15 and its companion sections, the Court of Appeals found it to be "sound policy to allow a [commercial] surety to recoup a forfeited bond.” People v Evans, supra, p 659. It agreed with the decision of the panel in People v Pavlak, supra, pp 196-197, that to refuse to provide such relief to commercial bondsmen would create a disincentive on their part to find and return absconded defendants:
Furthermore, it is our opinion that a rule which denies corporate sureties the relief provided for in MCL 765.15(a) [MSA 28.902(a)] is unsound as a matter of public policy. We have previously noted that "the surety’s function on the bail-bond contract operates to relieve the state from policing court attendance of bailed defendants and thus furthers the state’s interests.” Citizens for Pretrial Justice v Goldfarb, 88 Mich App 519, 567; 278 NW2d 653 (1979) (Brennan, J.). GCR 1963, 790.4(b) also recognizes the necessity of a surety bond to secure the appearance of a criminal accused in some circumstances.
It is well recognized in Michigan that a professional bondsman has the power to arrest an absconding client. Citizens for Pretrial Justice v Goldfarb, supra, 556. It is likely that a surety would spend large amounts of time and capital in locating and apprehending an absconder. If we now preclude the surety from recouping the amount of the forfeited bond, we will, as a practical matter, take away or at least greatly diminish his incentive to pursue such clients. This result would be detrimental to the court system of this state.
We need not resort to considerations of proper public policy in order to interpret § 15(a). While there may be good reasons for extending the pe riod for the remission of forfeitures to commercial bail bonds as well as deposits with the court, such reasons are irrelevant for our purposes. The question in this case is not whether the set-aside provision should apply only to deposits of cash, checks, or securities, but rather whether it does. For the reasons explained above, we can answer that question in the affirmative without engaging in a lengthy analysis of the purposes behind its narrow scope.
We are not persuaded, in any event, that policy considerations in fact support the application of § 15(a) in surety bond cases, as the Court of Appeals concludes. Given the lack of legislative history regarding the forfeiture provision, we are unlikely ever to arrive at the precise reasoning or "policies” behind its enactment. We should observe, however, that it was added to the statute during the bail reform movement of the 1960’s and 70’s, at the heart of which was a growing dissatisfaction with the existing commercial bail bond system. Critics of this system charged, among other things, that the idea of giving private businessmen so significant a role in determining whether an individual is to be released from jail pending trial is fundamentally at odds with our system of justice, and that the practice results in economic discrimination against those defendants who are financially incapable of raising the fee required by the bondsman, and who must therefore remain in jail pending trial.
Even the timing of the provision’s enactment, however, cannot fully explain the reasons behind it. We cannot know, for example, whether the Legislature was generally joining the movement against the commercial bail bond business by making full cash deposits more "attractive” than commercial bonds (because of the longer period for remission of deposits in lieu of surety bonds). Nor can we know whether it specifically intended to exclude commercial surety bonds from the longer set-aside period by placing the provision in § 15(a), which, again, deals exclusively with deposits, because it wanted to actually discourage long-term searches for absconded defendants by bondsmen.
It is also possible that the Legislature was sim ply formally extending to depositors the same sort of right to remission or relief from forfeiture that existed, albeit with less formal certainty, for commercial bondsmen. The provision’s placement might also merely reflect an intentional, and not unusual, distinction between commercial entities and individuals. The same sort of distinction is found, for example, in our Uniform Commercial Code, MCL 440.1101 et seq.; MSA 19.1101 et seq., which distinguishes between merchants and other buyers and sellers.
We do not suggest that the legislative history of the amendment points to any of the above as the purpose behind its enactment. Rather, the point is that there are any number of reasons why the Legislature might have chosen to create a set-aside provision that applies only to deposits with the court, and that we should not presume otherwise. If anything, the presumption should be that the Legislature did intend to limit the amendment’s application. In our view, the most persuasive evi dence of a legislative intent to limit the right to relief under § 15(a) is our inability to conclude — in light of the historical context in which the amendment was passed — that the Legislature could have intended to so ensure the profitability of the bondsman’s undertaking.
In all cases, whether the defendant appears on time or not, the bondsman is entitled to keep the ten percent fee he charges for his services. In addition, he often secures collateral from the defendant or his family or relatives for as much of the other ninety percent of the bond amount as he can, in the event the defendant does not appear. In essence, the bondsman’s decision to bail a particular defendant is a business decision, reflecting an evaluation of whether the defendant is likely to appear for trial, his recourses in the event the defendant does not appear, and, of course, the fee he will in any event collect. We find it doubtful, given the time and context in which the amendment was passed, that the Legislature intended to remove a good part of this "risk factor” from the bondsman’s decision by ensuring not only his ten percent fee but his freedom from liability even if the defendant fails to appear, so long as he is captured within a year.
c
Finally, it should be noted that the defendant-surety in this case has not been left without a remedy if § 15(a) is found unavailable. Section 28 of chapter V sets forth the procedures for entering a forfeiture judgment against a surety in the event of a default on a recognizance. It includes an opportunity for the surety to appear before the trial court to explain why judgment should not be entered against it, in whole or in part:
In addition to any other method available, it is hereby provided that whenever default shall be made in any recognizance in any court of record, the same shall be duly entered of record by the clerk of said court and thereafter said court, upon the motion of the attorney general, prosecuting attorney or city attorney, may give the surety or sureties 20 days’ notice, which notice shall be served upon said surety or sureties in person or left at his or their last known place of residence. Said surety or sureties shall be given an opportunity to appear before the court on a day certain and show cause why judgment should not be entered against him or them for the full amount of such recognizance. If good cause is not shown, the court shall then enter judgment against the surety or sureties on said recognizance for such amount as it may see ñt not exceeding the full amount thereof. Execution shall be awarded and executed upon said judgment in like manner as is provided in personal actions. [MCL 765.28; MSA 28.915. Emphasis added.][ ]
In addition, after a judgment has been entered against a surety, it stands as any judgment rendered in a personal action, and, as the Court of Appeals stated in Johnson, supra, p 709, "[i]t is enforceable, reviewable and appealable by way of the same provisions and by other statutes and court rules which may apply to the specific situation . . . .” The most significant of these provisions is MCL 600.4835; MSA 27A.4835, which provides, in pertinent part:
The circuit court for the county in which such court was held, or in which such recognizance was taken, may, upon good cause shown, remit any penalty, or any part thereof, upon such terms as appear just and equitable to the court.
For purposes of this statute, the term "penalty” includes forfeited recognizances. MCL 600.4801; MSA 27A.4801. The surety in this case has not been left without a remedy.
CONCLUSION
The forfeiture set-aside provision of § 15(a) does not apply in cases where a surety bond has been posted for a defendant’s release; rather, its application is limited to cases in which the defendant’s release was procured by depositing with the court cash, checks, or certain securities in the amount set as bail. Where a surety bond has been posted, no such deposit exists.
The decision of the Court of Appeals is therefore reversed, and the decision of the trial court is reinstated.
Riley, C.J., and Brickley, Cavanagh, Archer, and Griffin, JJ., concurred with Boyle, J.
The judgment read, in part:
[T]he recognizance having been forfeited by the Court for failure of the Defendant to appear as ordered by the Court; the Surety having appeared by counsel to respond to the Motion [for Entry of Judgment Against Surety at] a hearing in open Court on February 10, 1986; the Surety having offered no reason at that time to deny the Motion of the People for Judgment, but rather requesting a Stay of Execution of Judgment for sixty (60) days from the date of Entry of Judgment in order to permit the Surety to continue its efforts to locate the Defendant and return her to custody; the People having not objected to the Entry of Judgment in that manner, although the People reserved comment on whether the Judgment should be reduced by the Court pursuant to MCL 765.28 [MSA 28.915] if the Defendant is returned to custody by the Surety within said sixty (60) days; and the Court at this time having given counsel the opportunity to submit legal authority on the issue of whether or not a remittitur is appropriate under MCL 765.28 [MSA 28.915] where a surety returns a defendant to custody prior to execution of judgment; and the Court being otherwise fully advised in the premises;
It is hereby ordered that Judgment in the amount of Fifteen Thousand Dollars ($15,000.00) is hereby entered against the Surety and in favor of the People of the State of Michigan, payable to the County of Bay.
It is further ordered that execution of this Judgment is hereby stayed for sixty (60) days from the date hereof, after which the People may take any and all necessary proceedings to enforce and collect this Judgment, plus the interest thereon.
Following our decision to review this case, another panel of the Court of Appeals decided to follow the Johnson decision. People v Munley, 175 Mich App 399; 438 NW2d 292 (1989) (§ 15 does not afford relief to a commercial surety who has returned an errant defendant to custody after the appearance date has passed, but remission was nevertheless proper under § 4835 of the Revised Judicature Act, MCL 600.4835; MSA 27A.4835).
As explained below, such a deposit, made in the full amount set as bail, must be distinguished from other more common methods of securing the defendant’s release, such as depositing only ten percent of the bail amount with the court, MCR 6.106(D)(3)(b), or posting a "surety bond.” Surety bonds may be posted by a commercial "bondsman,” who collects a fee for this service from the defendant or other party interested in securing his release, see, e.g., Citizens for Pretrial Justice v Goldfarb, 415 Mich 255; 327 NW2d 910 (1982); MCL 750.167b; MSA 28.364(2), or by a private individual, who generally pledges real property to the court in exchange for the defendant’s release. See MCL 765.20 et seq.; MSA 28.907 et seq. In this case, defendant Kozy Bail Bond, a commercial "bondsman,” executed a surety bond with the court in order to secure defendant’s release.
Chapter V of the Code of Criminal Procedure, which concerns the subject of bail generally, was "created” by 1927 PA 175. This new statute comprised both original sections and provisions already in existence elsewhere, such as 1919 PA 332.
We are not at all troubled, in reaching this conclusion, by the fact that § 15 speaks generally of "bond or bail” being forfeited, and of "bail or bond” being discharged, rather than of "cash, checks, or securities” being forfeited or discharged. While the Legislature’s use of the terms in this manner is somewhat inartful, it is hardly surprising. This Court itself has referred to the deposit of cash, checks, or securities under this statute as the posting of both "cash bail,” Bingham v Montcalm Co, 251 Mich 651, 652; 232 NW 348 (1930), and "cash bond,” People v Faculak, 325 Mich 56, 59; 37 NW2d 709 (1949). In People v Benmore, 298 Mich 701, 704, 706; 299 NW 773 (1941), which involved a deposit of cash to secure the defendant’s release, this Court used both of those terms interchangeably, and spoke as well of the defendant’s "bond” being "ordered forfeited.”
The best evidence, however, that the terms "bail” and "bond” are used in a general rather than specific sense in § 15 is their obvious use in the same manner in the following section, § 16, which concerns the extent to which such deposits are subject to legal process. That section cannot be concerned with anything but deposits with the court. Surety bonds are not subject to garnishment or attachment even in the absence of a statute such as this. Nor can they be assigned. Section 16 must, therefore, be limited in application to deposits of cash, checks, or securities. Yet, that section, too, speaks of a court having jurisdiction to "discharge the bond or bail,” and refers to the court’s function as that of discharging "such bail or bond . . . .” This use of these same terms in § 16, which clearly is addressed only to deposits with the court, seems to preclude any argument that their use in § 15, with which it is in pari materia, implies a broader scope.
We are somewhat surprised by the dissent’s suggestion that the Legislative Service Bureau was unaware, in 1970, that § 15(a) until then had applied only to deposits with the court (as Justice Levin’s own opinion acknowledges, post, p 335, n 9), and that no member of the Legislature could have known this either. In People v Harrison, 194 Mich 363, 369; 160 NW 623 (1916), this Court long ago acknowledged the general rule of statutory construction that the Legislature is
presumed to know of and legislate in harmony with existing laws, and the language of every enactment is, so far as possible, to be construed consistent with other laws which it does not in plain and unequivocal terms modify or repeal.
We recently reaffirmed this rule in Endykiewicz v State Hwy Comm, 414 Mich 377, 385; 324 NW2d 755 (1982), an opinion signed by Justice Levin.
In our view, this presumption that the Legislature acts with knowledge of, and in harmony with, existing legislation necessarily extends not only to "other” laws, but also to the very piece of legislation the Legislature acts to amend. Indeed, we think the presumption should apply with even greater force in such cases, as explained above. To conclude otherwise is to take a rather dim view of the legislative process. Unlike Justice Levin, we refuse to believe that the Legislature either cannot or does not read its own statutes.
We do not disagree that, given that the forfeited cash, checks, or securities are unlikely to be in the same form up to a year after the forfeiture as when deposited, the Legislature may have unnecessarily confused matters by indicating that the set aside should be pursuant to § 15(b). We do not believe that this imprecision is fatal, however, since even as originally enacted, § 15(b) did not admit of a literal interpretation. In our view, that section cannot be read literally to require the court to return the same cash or the same uncashed check, regardless of whether the bail provisions were complied with and the bail or bond was discharged or whether it was forfeited.
We are not presented with a claim that it is somehow improper for the Legislature to treat deposits with the court differently than surety bonds. The defendant does not argue, for example, that this difference in treatment constitutes a violation of its constitutional guarantee of equal protection, although one of the cases it cites in support of its interpretation of § 15, People v Pavlak, supra, does conclude that there is "no rational basis” for such unequal treatment. Id., p 196. The question in this case is simply whether the statute as written does treat deposits differently from surety bonds.
Moreover, the distinction made by the Court of Appeals in this case and Pavlak between "commercial” and "individual” sureties for purposes of interpreting § 15(a) is in any case improper. In our view, it is unimportant who posts the surety bond. What is important for purposes of § 15 is whether there has been a deposit of cash, check, or securities rather than an execution of a surety bond.
See, e.g., Pannell v United States, 115 US App DC 379, 380; 320 F2d 698 (1963) (Wright, J., concurring):
The effect of such a system is that the professional bondsmen hold the keys to the jail in their pockets. They determine for whom they will act as surety — who in their judgment is a good risk. The bad risks, in the bondsmen’s judgment, and the ones who are unable to pay the bondsmen’s fees, remain in jail. The court and the commissioner are relegated to the relatively unimportant chore of fixing the amount of bail.
This bail reform “movement” began with the creation of the Vera Foundation in 1961, and its establishment of the Manhattan Bail Project that same year. It was the result of this undertaking that "awoke” courts and others to the inequities and waste of the bail system. For a general history of the bail reform movement, see Thomas, Bail Reform in America (Berkeley: Univ of Cal Press, 1976); Wice, Freedom for Sale: A National Study of Pretrial Release (Lexington: DC Heath & Co., 1974); Goldfarb, Ransom: A Critique of the American Bail System (New York: Harper & Row, 1965).
See, e.g., New York Senate Research Service Task Force on Critical Problems, Accused and Unconvicted: A Brief on Bail Practices (1978), p 14.
Consider, for example, this passage from Ransom, n 10 supra, at pp 112-113:
When a defendant who is free on bail fails to appear at trial, the very essence of our money-based bail system is that the bond shall be forfeited. This inevitability should be the very inducement that underlies the system. Yet, in practice, it is rare that bail money is in fact forfeited. Judges will often give the surety some time to make good on his assurance by finding the defendant and presenting him for later trial. Failing that, courts will often remit forfeitures on one ground or another even though the bondsman has failed to fulfill his role if the defendant disappears. Often judges will remit forfeitures even in cases where the defendant does not appear, late or ever. Where the bondsman shows due diligence in pursuing the disappearing defendant or pleads extenuating circumstances to account for his failure to produce a defendant, courts will often excuse his failure.
Section 2-509 of the UCC, MCL 440.2509; MSA 19.2509, which governs risk of loss, is a particularly appropriate example of this distinction. See also § 2-205 (firm offers); § 2-314 (implied warranty of merchantability); § 2-609 (adequate assurance of performance).
It was under this provision that the trial court in this case awarded the defendant surety a $6,500 "set-off” against the $15,000 forfeiture. The prosecution has not appealed the trial court’s action in this Court, and has in fact requested that this Court affirm the decision of the trial court. We therefore decline to comment on the applicability of that provision in this case.
We note, lastly, the defendant surety’s argument that the term "security” in the phrase "cash, check or security” is broad enough to encompass a commercial surety bond. On this point, however, we find Judge Gillis’ discussion in People v Johnson, supra, persuasive:
Within chapter 5 there are seven statutes (§§ 12-18) which deal with the same subject matter, that is, the "deposit of cash, certified check or certain securities in lieu of bond or bail.” Accordingly, we interpret the statutes in connection with each other. Section 12 sets out the types of securities included within the heading "certain securities” which may be deposited. These are, "obligations of the United States Government negotiable by delivery or bonds of any municipality of this state negotiable by delivery.” The phrase "cash, check or security” is found in §§ 13 and 16 in addition to § 15. Sections 17 and 18 contain the phrase "any cash or securities.” It is apparent to us that the phrases "such cash, check or security,” "the cash, check or security” and "any cash or securities” all refer to the items deposited in lieu of hail or bond. In order to be remitted in accordance with § 15, the bail or bond must first be deposited as provided in § 13, and in order to be so deposited the item must be one that is acceptable under § 12. Surety bonds are not listed within § 12 as a type of "certain security.” [Id., p 707.]
To this explanation, we add only a brief reference to § 18, which states:
Any person, firm or corporation availing himself or itself of the provisions of this chapter may, at any time before forfeiture of the same, redeem any cash or securities so deposited by substituting the bond originally required or permitted. [Emphasis added.]
This provision, which allows a party to retrieve from the court any "cash, [checks] or securities” deposited with it by "substituting the bond originally required or permitted” — e.g., by executing a surety bond in the same amount — ¡demonstrates the clear distinction between the negotiable securities referred to initially in § 12 and the kind of "security” with which a court is provided when it accepts a surety bond. | [
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Brickley, J.
In these two cases, consolidated on appeal, each defendant was convicted by a jury of first-degree criminal sexual conduct. During each trial, an expert testified regarding the characteristics and patterns of behavior typically exhibited by sexually abused children. We granted leave to appeal to determine whether the trial court properly admitted the disputed expert testimony.
i
A. PEOPLE v BECKLEY
Defendant, Robert Lee Beckley, was convicted of first-degree criminal sexual conduct for having sexual intercourse with his fifteen-year-old daughter. At the time of the incident, the victim had been living with her father; her parents were divorced.
She testified that on the evening of May 29, 1983, her father returned home, under the influence of alcohol, and, while watching television, defendant began rubbing her back. Thereafter he gave her several "French kiss[es].” A short time later, defendant called his daughter into his bedroom and requested that she "lay down with him for a while.” The victim was pulled onto the bed, at which time defendant removed her clothing while holding her arm and had vaginal intercourse with her. Following the incident, defendant made her promise not to tell anyone.
According to the victim, the incident lasted about ten minutes after which she got out of bed, picked up her clothing and went to the bathroom where she washed and dressed. She made two phone calls to her mother relaying that her father had made passes at her, but withholding information as to the intercourse. During the first phone call, the victim refused her mother’s request to pick her up. Yet, immediately thereafter she called her mother again and asked to be picked up. She was waiting outside when her mother arrived and they went to her paternal grandmother’s home. The mother and grandmother discussed defendant’s advances without mention of the intercourse.
A few days later, the victim, accompanied by her grandmother, made a trip to defendant’s home so that she could pick up her belongings. On the trip, Wilda Beckley, testified that the victim said, " 'By the way, Grandma, that mess the other night, ... I made a mountain out of a molehill. . . . My dad didn’t do anything to me.’ ” The victim denied making such a statement.
The act of intercourse was not revealed until approximately one year later when the victim wrote about the incident in a journal for a high school English assignment. According to the victim, during the interim year she had told some of her friends about the passes, but had continued to deny that any intercourse had taken place. Apparently, the only person she told about the entire incident was her boyfriend. Further during the one-year time period between the incident and disclosure, she continued to see her father on various occasions. However, the victim and her father were never alone together._
Defendant affirmatively denies having sexual intercourse with his daughter. However, he admits that he "French” kissed her and that he called her to join him in bed. However, as he explained to his daughter, the incident was merely a game to see if his daughter was sexually active. Thus, defendant’s version of the facts was substantially the same as the victim’s up until the time of the journal entry which disclosed sexual intercourse.
The victim was the first witness called by the prosecution to testify. On cross-examination, the defense tried to discredit the victim’s allegations by suggesting that the complainant’s behavior was inconsistent with a person who had been victimized. Four specific items of behavior of the complainant were brought out on cross-examination: (1) the delayed disclosure, (2) the medium of disclosure, (3) the complainant’s continued desire to see the alleged offender, and, (4) the victim’s initial tendency to deny sexual intercourse.
Following testimony by the victim, the prosecution sought permission to call Robin Smietanka as an expert witness. The trial court qualified Ms. Smietanka as an expert pursuant to People v Stull, 127 Mich App 14; 338 NW2d 403 (1983). However, the court limited the testimony to the victim’s behavior observed by the expert which would be consistent with the profile of an incest victim. The court specifically stated that it would disallow any testimony concerning the complainant’s credibility and whether or not any sexual assault had actually taken place. Further the court allowed the prosecution to present the expert testimony in its case in chief because "it . . . appealed] that defendant would raise these issues by attack on the credibility of the complainant . . .
Ms. Smietanka testified that the bulk of psychiatric literature suggests that victims of sexual abuse exhibit certain patterns of behavior that are indicators of the abuse. Specifically, she commented on the four instances of behavior observed in the complainant. On direct examination, Ms. Smietanka testified that the delayed disclosure, disclosure to a third party outside the family, continual contact with the offender, and initial reporting of only "passes” are all typical behavioral characteristics of a victim of sexual abuse.
On cross-examination the defense also centered its questioning on the victim’s lack of memory about conversations with persons concerning the incident. Ms. Smietanka testified that such inconsistencies were not necessarily indicative of a lie, but of an attempt on the part of the victim to minimize the event. Thus they were not inconsistent with behavioral patterns of sexually abused persons.
Defense counsel drew out the fact that the complainant’s parents had gone through a bitter divorce, that the complainant’s mother was very vindictive, and that within days preceding the journal entry defendant had hurt complainant’s feelings. Ms. Smietanka testified that these factors would be significant; however, "[t]he additional factors that you have asked about would certainly need to be explored, but just based on what you said, it would not rule out a sexual abuse.”_
On redirect examination, the prosecutor tried to draw out those indicators that the expert thought would support a finding of sexual abuse. The expert responded that the following behavioral patterns would also be indicators of abuse: (1) the child’s ability to recount any pattern of activity which would demonstrate that the incident was not an isolated event; (2) a progression of actual sexual activity; (3) a tendency towards secrecy; (4) exertion of pressure or coercion, i.e., threats as a result of the victim disclosing or attempting to disclose the event; and (5) the child’s ability to give explicit details of the sexual activity. Thus, the examination of this witness was no longer limited to the four specific behavioral characteristics originally attacked by defendant on cross-examination of the victim.
On recross-examination the defense again tried to emphasize that the symptoms exhibited could be from another source. For example, whether or not school trouble could be the result of some other problem in the child’s life. Ms. Smietanka testified that it would be less likely to see school trouble as a symptom of sexual abuse. However, she did suggest that many of the same symptoms seen in a child of sexual abuse could be seen when the parents are divorcing.
Following the testimony, the defendant moved for a mistrial or to strike the testimony. The ground upon which the defense relied was that the witness’ testimony enhanced the credibility of the witness to the extent that she supported what the complainant was relating about the ultimate question in the case. The trial judge denied defendant’s .motion on the ground that the scope of the witness’ testimony was widened by defense counsel rather than by the prosecution.
B. PEOPLE v BADOUR
Defendant’s conviction arises out of an incident involving her six-year-old daughter. Defendant was convicted of first-degree criminal sexual conduct on an aiding and abetting theory and sentenced to thirty to sixty years.
The victim accused her mother of holding down her arms and legs and forcing her to perform fellatio on defendant’s live-in boyfriend, Roy Erving. The incident came to the attention of the authorities when the victim was locked out of her home during January, 1985. It was at this time that she was placed in foster care. Initially, only Roy Erving was accused and it was not until June, 1985, that the victim raised allegations against her mother. This occurred when the victim began counseling at Lutheran Child and Family Services, during a group session called "Daughters United.” Thereafter, the psychologist to whom the victim made the allegations contacted a counselor at the Department of Social Services.
The defendant has generally denied the allegations raised against her. In November, 1984, she moved out of the house that she and Roy shared for six years. Thereafter, defendant had ceased to have any type of relationship with Roy and argued that therefore there would be no reason for her to allow him to perform sexual acts on her daughter.
The prosecution’s first witness was Lynn Butter-field, a psychologist employed by Lutheran Child and Family Services. The trial court certified Ms. Butterfield as an expert over defendant’s objection.
On direct examination, Ms. Butterfield gave testimony relating to sexually abused children generally, as well as an opinion relating specifically to observable behavior of the complainant.
On cross-examination defense counsel tried to elicit testimony that would suggest that the "symptoms” that the victim was experiencing were the direct result of being placed in foster care. Further, that she was lying in an attempt to get back at her mother and Roy for breaking up. In response, Ms. Butterfield testified that placing a child into a new setting could produce feelings of fear, lack of trust, and anxiety. As to the question about whether or not the victim was lying, Ms. Butterfield stated that such a conclusion could not be eliminated.
On redirect examination the prosecutor brought out testimony as to whether or not children had the ability to invent sexual acts. In response Ms. Butterfield testified generally that children basically have no knowledge of sexual acts and therefore there is no way a child could invent a specific sexual act without experiencing it. However, she qualified the answer, stating that much of what a child knows or is able to relate concerning sexual acts depends on the child.
The prosecution called a second expert, Dr. Shinedling, over defendant’s objection. The trial court limited Dr. Shinedling’s testimony to the behavior patterns of children who were sexually abused. However, the court prohibited "syndrome type” testimony and any expert opinion as to whether or not the victim had been sexually assaulted. Dr. Shinedling testified as to the type of test that he generally gives children to determine their developmental level. Dr. Shinedling also testified as to what expectations a person could have when dealing with a child and their precision as to dates and sequences of events. Specifically Dr. Shinedling stated that children are very imprecise and have a hard time conceptualizing days, weeks, or months.
Consistent with Ms. Butterfield’s testimony, Dr. Shinedling testified that a child who had not experienced a sexual act typically could not fabricate the story. He qualified the statement by suggesting that the ability to fabricate would depend on the age of the child. However, sexually inexperienced children would tend to view a sexual act as something other than what it actually was. Concerning a sexually abused child’s disclosure patterns, he stated that it was rare for a sexually abused child to volunteer any information.
Thereafter, Dr. Shinedling testified regarding the tests he had specifically given the victim. The only conclusion that Dr. Shinedling drew, in terms of an opinion, were about the victim’s intelligence level. He suggested that the victim was borderline dull to normal range of intelligence.
ii
The Court of Appeals upheld the admissibility of the expert testimony in both cases. In Beckley, the Court held:
A rape counselor’s testimony is admissible, un der established precedent, for the narrow purpose of rebutting an inference that a complainant’s postincident behavior was inconsistent with that of an actual victim of sexual abuse, incest or rape, A cautionary instruction must be given to the jury. The evidence herein fits squarely into these categories. [161 Mich App 120, 129; 409 NW2d 759 (1987).]
The Badour panel ruled that the trial court did not abuse its discretion because Ms. Butterfield did not testify regarding "rape trauma syndrome.” Rather, she testified merely regarding a child’s behavior following an alleged incident of sexual abuse. 167 Mich App 186, 196; 421 NW2d 624 (1988).
The common arguments in each case, raised by defendants in this Court, attack the admissibility of the expert testimony on the following grounds: (1) the testimony is unreliable because it fails to meet the Davis/Frye test; (2) the testimony of each expert amounted to an opinion as to the truthfulness and credibility of the complaining witness; and (3) the testimony was unfairly prejudicial. The prosecution has responded, arguing first that the Davis/Frye test is inapplicable because the expert testimony in each case did not involve techniques, instruments, or a specific scientific method of a technical nature. Further, the evidence was properly admitted pursuant to MRE 702 governing admission of expert testimony. Defen-, dant in Badour raises two additional arguments: (1) that the expert was not qualified to give an opinion on the basis of the " 'indicia’ of a sexually abused child,” and (2) that the expert testimony concerning the complainant’s identification of de fendant was inadmissible hearsay. Conversely, the prosecutor in Badour argued that the trial court did not abuse its discretion because the particular witness had sufficient training and education to be treated as an expert for purposes of rendering an opinion in this case. The prosecutor asserts in response to defendant’s hearsay argument that the evidence was not offered for the truth of the allegations, but to show why the child was originally undergoing counseling.
hi
Because "syndrome” evidence as it relates to child abuse cases is a relatively new development in the law and novel to our Court, we begin our analysis with an examination of the law of other jurisdictions. The division among the courts of the nation as to the admissibility of "syndrome” evidence in child abuse cases has spawned various theories of admissibility ranging from admission of syndrome evidence generally-, including an opinion on the specific behaviors of the child victim, to admission of testimony only as to a specific behavior associated with the syndrome. Because syndrome evidence is not necessarily probative of abuse, the trend among the various jurisdictions is to admit the evidence of behavioral patterns of sexually abused children only as rebuttal or rehabilitative evidence. Even the most liberal of the theories for admitting the evidence does not allow admission as substantive evidence.
State v Kim, 64 Hawaii 598; 645 P2d 1330 (1982), has adopted the most liberal approach to admissibility. In Kim, the defendant was convicted of second-degree rape of his thirteen-year-old stepdaughter. After informing her mother, the complainant was taken for a medical examination. The examiner was Dr. Mann, a pediatrician and child psychiatrist. At trial, the defense attempted to impeach the complainant’s credibility. There after the trial court ruled that the defendant had placed the complainant’s credibility at issue and therefore expert testimony was admissible for rebuttal. Dr. Mann was allowed to testify concerning evidence of the syndrome generally.
On appeal, after announcing the general rule that the jury is the sole judge of credibility, the court ruled that any danger that the jury would surrender its function is diminished if the testimony remains consistent with its specific purpose. The Kim court allowed Dr. Mann to testify with respect to this particular complainant. In fact, he opined that he found the victim’s account "believable.” Id. at 601.
Further, the Kim court specifically required that all information on which the syndrome was premised must be submitted to the jury for its assessment. It reasoned that such information was necessary to "enable the jury to evaluate the mode as well as conclusions of the expert . . . .” Id. at 606.
The court in Kim recognized that there were dangers in allowing syndrome testimony. The dangers that the court identified were that the expert may usurp the jury’s function, a battle of the experts may result, and there may be an invasion of the victim’s privacy. However, the ultimate ruling of the court was that the value of evidence outweighed any of these dangers.
The continuum of expert testimony for rehabilitative purposes runs from the approach adopted in Kim to a more conservative approach where testimony is allowed only on specific behavioral instances to which the defendant has opened the door in an attempt to discredit the victim’s testimony. This conservative approach permits syn drome testimony only with respect to the specific characteristics that the defendant has attacked.
In People v Bowker, 203 Cal App 3d 385; 249 Cal Rptr 886 (1988), the California court applied this approach to test the admissibility of syndrome-type evidence. The court ruled that because syndrome evidence could be misconstrued as a predictor of child abuse, testimony of an expert should be limited to popular "myths” which would have an effect on the jury’s consideration as to the credibility of the witness. The use of expert testimony was also limited to rebuttal evidence following an attack by the defendant on the complainant’s credibility. The court ruled that the evidence must be targeted at a specific "myth” and gave examples of the appropriate use of the testimony. It stated that if the misconception were disclosure, the prosecutor’s evidence would be designed to show that delayed reporting is not inconsistent with child sexual abuse. Further, recantation was another myth which the court specifically gave as an example of how the testimony could be used on rebuttal. One further limitation was placed on the use of such information. The court stated that "[bjeyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claim is true.” Id. at 394. The instruction is intended to protect against the misapplication of the evidence as a diagnostic tool to determine that the complainant is a victim of child sexual abuse.
Between Kim, which allows syndrome evidence generally, an evaluation of the child victim characteristics, and an opinion on the believability of the victim, and Bowker, which allows testimony concerning only those specific characteristics attacked and no vouching, is a middle ground which allows the expert to testify in general terms as to any and all behavior patterns that are seemingly inconsistent with crime victims generally.
The only common factor where courts have accepted some use of syndrome evidence, is that the evidence is admissible only to rehabilitate the victim’s testimony. However, each case differs with regard to the limitations placed on the use of the rebuttal testimony.
We find that the rebuttal limitation as expressed by the majority of jurisdictions is the preferable approach. Although similar to the conservative theory announced in Bowker, we find that the Court of Appeals in Beckley best describes what the rule should be in Michigan. Accordingly we would hold that evidence of behavioral patterns of sexually abused children is admissible "for the narrow purpose of rebutting an inference that a complainant’s postincident behavior was inconsistent with that of an actual victim of sexual abuse, incest or rape.” Therefore, for reasons that will be more fully developed below, we would hold that only those aspects of "child sexual abuse accommodation syndrome,” which specifically relate to the particular behaviors which become an issue in the case are admissible.
IV
In Michigan, MRE 702 governs the admissibility of expert testimony:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Admissibility under this rule requires that the evidence comply with a three-part test. First, the expert himself must be qualified. Second, the evidence must serve to give the trier of fact a better understanding of the evidence or assist in determining a fact in issue. Finally, the evidence must be from a recognized discipline. The determination of whether a witness is qualified to render an expert opinion rests within the discretion of the trial court. Such a determination will not be reversed absent an abuse of discretion.
A
We turn first to an examination of the credentials of the experts who testified in these cases.
MRE 702 defines an expert in general terms, and expertise can be satisfied by a wide array of qualifications. A witness is qualified as an expert by virtue of knowledge, skill, experience, training, or education in a pertinent field. "[WJithin the scope of the rule are not only experts in the strictest sense of the word, . . . but also the large group sometimes called 'skilled’ witnesses . . . .” In cases involving sexual abuse of children, expert testimony has been presented by physicians, crisis counselors, social workers, police officers, and psychologists.
The study of child sexual abuse is an emerging, if not well-defined, specialized field of human behavior. Not all psychiatrists, psychologists, and social workers will qualify to give expert testimony on the subject. However, in Jenkins v United States, 113 US App DC 300; 307 F2d 637 (1962), the court held that lack of a medical degree does not automatically disqualify a witness from rendering an expert opinion. Further, the Jenkins court noted that what was determinative was the nature and extent of knowledge and actual experience, not the claim to the title "psychologist.” See also Croda v Sarnacki, 414 Mich 882; 332 NW2d 712 (1982), rev’g 106 Mich App 51; 307 NW2d 728 (1981). Further, Michigan endorses a broad application of the requirements for qualifying an expert. Dudek v Popp, 373 Mich 300, 306; 129 NW2d 393 (1964).
Robin Zollar Smietanka, the expert in Beckley, is a certified social worker. She earned a Bachelor of Science degree in special education and a double Master of Arts degree in education and psychol ogy. Her counseling primarily includes victims of child sexual abuse and victims of incest. Her active caseload in this area began in 1976, and she testified that she has counseled somewhere between 1200 and 1500 child victims.
Lynn Butterfield, an expert in Badour, is a family counselor at Lutheran Child and Family Services. She earned a Bachelor’s degree in psychology and a Master’s degree in counseling psychology. She has been working with children for over five years and approximately ninety percent of her caseload is with sexually abused children.
Dr. Martin Shinedling, another expert in Bad-our, is a psychologist working for Planning for Living. He earned Bachelor’s and Master’s degrees at California State University at Los Angeles and a doctorate in clinical psychology at Brigham Young University. Further, he is licensed to practice psychology in Michigan.
It is clear from the record, that the experts herein have the appropriate educational background as well as extensive firsthand experience with sexually abused children. Accordingly, the trial court in qualifying each individual as an expert, did not, in our view, abuse its discretion.
B
In addition to assessing a witness’ qualifications, the trial judge must also make a determination as to the relevancy of the evidence. The general test of relevancy is whether the evidence has a tendency to render any fact more probable than it would without the evidence. However, a more specific test is applied to expert testimony. Expert testimony is relevant and therefore admissible if it "assistfs] the trier of fact to understand the evidence or to determine a fact in issue . . . .”
This Court has applied the standard announced in MRE 702 as early as 1874 where Justice Campbell wrote:
[Expert] testimony is not desirable in any case where the jury can get along without it; and is only admitted from necessity, and then only when it is likely to be of some value. [People v Morrigan, 29 Mich 4, 8 (1874).]
The test applied in Morrigan was further defined by this Court in People v Zimmerman, 385 Mich 417, 427; 189 NW2d 259 (1971). The Zimmerman Court stated that necessity constitutes the essential factor in determining admissibility. However, basing admission of expert testimony on "need” has been criticized, and more recently this Court has stated that the proper standard to be applied is helpfulness to the jury. See People v Smith, 425 Mich 98; 387 NW2d 814 (1986). "Generally, the testimony must assist the jury in understanding the evidence or the factual issues, and the witness must have sufficient qualifications 'as to make it appear that his opinion or inference will probably aid the trier in the search for truth.’ ” Id. at 106 (citations omitted). The Smith Court quoted the advisory note to FRE 702 for guidance in applying the evidentiary rule which provides:
"Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. 'There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.’ ” [Id. Citations omitted.]
Advocates of the use of expert testimony in sexual assault cases suggest that without expert testimony jurors cannot properly assess an individual’s reaction to a sexual assault. A victim’s reactions to a sexual assault, especially if the assailant is a family member, are unique to the particular crime. This uniqueness puts the evidence beyond the jury’s ability to properly evaluate the facts in issue absent expert testimony. Further, there is general agreement among ex perts that reactions of a victim of sexual assault vary quite significantly from those of a victim of the "average” crime.
The findings of professional research suggest that there are many seemingly inconsistent responses to the trauma of the incident which require some form of explanation. Further, there is considerable authority suggesting that society has a prevailing distrust of the female who complains of rape. This historical distrust of the female complainant is nullified a bit when dealing with child sexual abuse; however, such distrust is not eliminated. It is not surprising that jurors would be skeptical about a child’s complaint of sexual abuse because of a child’s susceptibility to external influences. Further, there seems to be a prevalent view that children fantasize about sexual acts. Another possible misconception concerning the child victim is the belief that when a child suffers an injury it will be reported immediately. However, postponement of disclosure is readily viewed by experts as consistent with the behavioral patterns of a child who has been sexually abused. Other suggested misconceptions are that sex offenders are always strangers and that physical injury will almost always result from the incident.
Given the possibility of these misconceptions, it would be helpful and appropriate to allow expert testimony in child sexual abuse cases.
Additionally, the evidence is relevant and helpful to a jury because of the nature of the crime. In most criminal sexual conduct cases there are no nonparticipant witnesses to the crime, which reduces the cases to weighing the defendant’s credibility against that of the victim’s. Even more important is the fact that, at least in Badour, we are dealing with a child of tender years. Generally, children of such a young age will have difficulty on the witness stand, and therefore their credibility may easily be attacked by the defense. Further, given the fact that disclosure in child sexual abuse cases is generally delayed because of coercion, guilt, or some other reason, there will be no physical evidence to corroborate the victim’s allegations. Therefore we hold that expert testimony will, under certain circumstances, assist the jury in understanding the evidence.
c
The final inquiry under MRE 702 is whether the testimony is derived from a "recognized scientific, technical, or other specialized knowledge . . . .” Defendants do not argue, nor do we suggest, that the mental health discipline is not a recognized field of specialized knowledge. It is undeniable that there is an emerging cadre of social and behavioral scientists and clinicians who specialize in the treatment and the study of the victims of child sexual abuse. It would further deny reality not to recognize this field of practice and study. However, defendants do object to any expert testimony based on child sexual abuse syndrome because there is no fixed syndrome which is recognized by the profession. Thus it is urged upon us that when the subject of the expert testimony is child sexual abuse syndrome, the reliability of the evidence should be examined under the principles of the Davis/Frye test.
Although not specifically mentioned in the evidentiary rule, the Davis/Frye test has been en-grafted by case law to determine whether a novel scientific principle or technique is "recognized” within the relevant scientific community. It is a test whereby the trial court, in determining admissibility, judges the reliability of the scientific principle or technique as a threshold matter. The foundational requirement for admissibility under the Davis/Frye test is that the proponent of the evidence must show that the scientific principle or technique has gained such general acceptance within the scientific community as to render the technique or principle reliable. Further, general scientific acceptability must be established by disinterested scientists. The Davis/Frye test restricts the admissibility of relevant evidence on the basis of general scientific acceptance to ensure that a jury is not relying on unproven and ultimately unsound scientific methods. Further, it protects against the jury being overcome by the aura of the expert’s testimony about the results or the inferences drawn from the testing procedure. The Davis/Frye test seeks to ensure that the jury is the ultimate factfinder and that it will not "abandon its responsibility to decide the critical issues and simply adopt the judgment of the expert [because of] an inability to accurately appraise the validity of the underlying science.”
Although the Frye test has been criticized by commentators, this Court reaffirmed its application in People v Young, 418 Mich 1; 340 NW2d 805 (1983). The Davis/Frye test has been applied in Michigan to various scientific devices and techniques; however, as a general rule, the Davis/ Frye test has not been applied to behavioral sciences.
Psychologists, when called as experts, do not talk about things or objects; they talk about people. They do not dehumanize people with whom they deal by treating them as objects composed of interacting biological systems. Rather, they speak of the whole person.[ ]
Thus, it is difficult to fit the behavioral professions within the application and definition of Davis/ Frye.
This principle is best illustrated by the admissibility of a psychiatrist’s testimony in a criminal trial on the issue of insanity. See, e.g., People v Martin, 386 Mich 407, 421; 192 NW2d 215 (1971). In Martin, we recognized that the "field of human medicine” has a limited use as evidence in a criminal trial because it lacks reliability. However, we did not exclude the evidence, nor did we submit the evidence to scrutiny under the Davis/Frye test.
The ultimate testimony received on syndrome evidence is really only an opinion of the expert based on collective clinical observations of a class of victims. Further, the issues and the testimony solicited from experts are not so complicated that jurors will not be able to understand the "technical” details. The experts in each case are merely outlining probable responses to a traumatic event. It is clearly within the realm of all human experience to expect that a person would react to a traumatic event and that such reactions would not be consistent or predictable in all persons. Finally, there is a fundamental difference between techniques and procedures based on chemical, biological, or other physical sciences as contrasted with theories and assumptions that are based on the behavioral sciences.
We would hold that so long as the purpose of the evidence is merely to offer an explanation for certain behavior, the Davis/Frye test is inapplicable.
v
Having set forth the standards governing admissibility of the testimony, we turn now to the limitations on its use.
The use of expert testimony in the prosecution of criminal sexual conduct cases is not an ordinary situation. Given the nature of the offense and the terrible consequences of a miscalculation — the consequences when an individual, on many occasions a family member, is falsely accused of one of society’s most heinous offenses, or, conversely, when one who commits such a crime would go unpunished and a possible reoccurrence of the act would go unprevented — appropriate safeguards are necessary. To a jury recognizing the awesome dilemma of whom to believe, an expert will often represent the only seemingly objective source, offering it a much sought-after hook on which to hang its hat. Therefore admissibility of expert testimony, under the limitations set forth in this opinion, is an effort to accommodate the uniqueness of the child victim’s reactions while at the same time avoiding undue reliance on such testimony. The expert testimony offered is based at best on an inexact scientific foundation, and therefore the evidence is only admissible when a victim’s behavior becomes an issue in the case.
A
We note first that child sexual abuse syndrome evidence is essentially a therapeutic tool. The syndrome is merely "umbrella terminology” which serves only to define the broad range of possible physical, psychological, and emotional reactions that a child victim could potentially experience. Its purpose is to provide "a 'common language’ for the professionals working to protect sexually abused children.” It is not intended as a diagnostic tool for detection of sexual abuse. Thus, it has no probative value in terms of being able to detect sexual abuse on the basis of the existence of certain behavioral characteristics.
The existence of the syndrome assumes the presence of abuse and merely seeks to explain an individual child’s reaction to it. For example, in People v Gray, 187 Cal App 3d 213; 231 Cal Rptr 658 (1986), a child psychologist testified that the syndrome itself could not be diagnosed or tested, but rather was an attempt on the part of psychologists to identify traits and characteristics of child sexual abuse. Similarly, Justice Benke, concurring in People v Bowker, supra, defined syndrome as "nothing more than a set of symptoms which tend to occur together” but which do not resolve the question whether abuse occurred. 203 Cal App 3d 397.
Admitting evidence that a syndrome exists can be prejudicial to a defendant because the experts are in general agreement that there is no single specific set of characteristics that can be attributed to every individual in diagnosing child sexual abuse. Within the group of sexually abused children there is a significant variation among the factors that can be observed and diagnosed. "There is no single effect that has been observed in all children. Whether there is some unique and specific effect of sexual abuse is unknown.” Therefore, what the expert and the practitioner must look for are certain behavioral patterns of the victim in a given case that are representative of sexually abused children generally.
Indeed, the evidence has a very limited use and should be admitted cautiously because of the danger of permitting an inference that as a result of certain behavior sexual abuse in fact occurred, when evidence of the syndrome is not a conclusive finding of abuse. Although syndrome evidence may be appropriate as a tool for purposes of treatment, we would hold that it is unreliable as an indicator of sexual abuse.
As reliability diminishes, the prejudicial effect of the evidence increases. Evidence, although relevant, is excluded when its probative value is substantially outweighed by any unfair prejudice. MRE 403. Accordingly, we would hold that the admissibility of syndrome evidence is limited to a description of the uniqueness of a specific behavior brought out at trial.
In keeping with the purpose for which the evidence is admissible (i.e., to provide background data relevant to an evaluation of this victim’s behavior), the party offering the testimony must identify the specific behavior or statement at issue in the case. Further, because there is no fixed syndrome that collectively defines the profile of the typical child who has been sexually abused, expert testimony must be tailored individually to each particular behavior at issue in the case. Expert testimony is only admissible to cast light on the individual behaviors observed in the complainant, therefore the expert must not render an opinion that a particular behavior or a set of behaviors observed in the complainant indicates that sexual assault in fact occurred. We note that generally effective cross-examination will prevent the jury from drawing such a conclusion; however, a limiting instruction may also be necessary and should be given on request.
B
Once qualified to give an expert opinion, MRE 702 does not limit the scope of the expert’s testi mony. However, "[t]he expert must be an expert in the precise problem as to which he undertakes to testify.” Zimmerman, supra at 453 (Adams, J., separate opinion).
A person qualifies as an expert under the scientific study of behavior when there is "mastery of a specialized field of knowledge about a group of either children who have been sexually misused, or adults who have sexually misused children.” In this light, the expertise of the witness does not center upon the complainant in any individual case. Rather, the expertise of the testifying expert concerns only whether the specific behavior at issue is commonly or uncommonly associated with sexually abused children as a class.
We emphasize that the purpose of allowing expert testimony in these kinds of cases is to give the jury a framework of possible alternatives for the behaviors of the victim at issue in the case in relation to the class of abuse victims. In this respect, the expert’s role is to provide sufficient background information about each individual behavior at issue which will help the jury to dispel any popular misconception commonly associated with the demonstrated reaction. Thus to assist the jury in understanding the unique reactions of victims of sexual assault, the testimony should be limited to whether the behavior of this particular victim is common to the class of reported child abuse victims. The expert’s evaluation of the individual behavior traits at issue is not centered on what was observed in this victim, but rather whether the behavioral sciences recognize this behavior as being a common reaction to a unique criminal act. Therefore we would hold that because a witness qualifies as an expert because of knowledge and experience in dealing with others who have been abused, and not on the basis of an examination of the particular victim, the expert’s testimony should be confined to an explanation of the behavior traits at issue, as defined by the science that forms the basis of the expertise. This rule does not preclude a party from questioning an expert regarding the expert’s familiarity or understanding of the victim’s behavior at issue. Further, the expert is allowed to define the victim’s behavior in terms of the factual background that may have a relationship to those aspects of the victim’s behavior which become evidence in the case. However, an expert cannot introduce new facts based on personal observations of the complainant unless the evidence would be otherwise admissible.
We also note that MRE 704 provides that the opinion provided by the expert can "embrace! ] an ultimate issue to be decided by the trier of fact.”
Nevertheless, there is a meaningful distinction between expert testimony that a particular child was sexually abused, and expert testimony that a child demonstrates behaviors commonly observed in the class of sexually abused children. In the latter case, the expert does not offer a direct opinion on the ultimate question of whether abuse occurred.[ ]
Therefore, any testimony about the truthfulness of this victim’s allegations against the defendant would he improper because its underlying purpose would be to enhance the credibility of the witness. To hold otherwise would allow the expert to be seen not only as possessing specialized knowledge in terms of behavioral characteristics generally associated with the class of victims, but to possess some specialized knowledge for discerning the truth. "Psychologists and psychiatrists are not, and do not claim to be, experts at discerning truth. Psychiatrists are trained to accept facts provided by their patients, not to act as judges of patients’ credibility.”
It was for similar reasons that we limited the use of psychological evidence in People v LaLone, 432 Mich 103, 109; 437 NW2d 611 (1989). In LaLone, we tested whether hearsay statements regarding the identity of the perpetrator of a crime were admissible under the MRE 803(4) hearsay exception. The witness in LaLone was a psychologist who "treat[ed] mental and emotional disorders rather than physical ones.” Evidence is admissible under MRE 804(3) because of its reliability, i.e., patients normally do not fabricate with regard to the cause of an injury or when they may have pain. The statements made to a doctor are cloaked with a sense of reliability because accuracy is necessary for diagnosis and treatment. Further, we noted that those in the mental health profession generally work with statements that are both true and untrue in diagnosing and treating a patient for a mental disorder. Mental health professionals generally only receive information from the patient. They start with the basic assumption that the history they receive is what the patient believes to be the truth, not necessarily what actually is the truth. Thus, in LaLone, we ruled that statements made to a psychologist were less reliable than those made to a physician and were not within the specific language of the rule which allows evidence of information necessary for medical treatment or medical diagnosis._
Accordingly, we find that appropriate expert testimony is limited to providing the jury with background information, relevant to the specific aspect of the child’s conduct at issue, which it could not otherwise bring to its evaluation of the child’s credibility. We caution that to permit the expert witness to render a legal conclusion regarding whether abuse in fact occurred, exceeds the scope of the rule. The conclusion whether abuse occurred is outside the scope of expertise, and therefore not a proper subject for expert testimony. The jury must make its own determination from the totality of the evidence whether the complainant was sexually abused.
"It should be kept in mind that those who write about sexual abuse of children are normally child advocates who research and write with the paramount goal of protecting abused children.” Given the abhorrence of the crime, it is inevitable that those who treat a child victim will have an emotional inclination toward protecting the child victim. The expert who treats a child victim may lose some objectivity concerning a particular case. Therefore to avoid the pitfall of the treating professional being inclined to give an opinion regarding whether the complaining witness had been sexually abused, we caution the trial court to carefully scrutinize the treating professional’s ability to aid the trier of fact when exercising discretion in qualifying such an expert witness.
VI
In Beckley, the trial judge specifically stated that the prosecution could present expert testi mony because "it . . . appealed] that defendant would raise these issues by attack on the credibility of the complainant . . . Also, the trial court limited the testimony to whether any of the behaviors observed in the victim were consistent with the profile of an incest victim. The trial court took great care to limit the expert testimony offered to only those aspects of the victim’s behaviors that were relevant to the case and to minimize the prejudice to defendant. Therefore, we would hold that the trial judge did not abuse his discretion by allowing expert testimony in this case.
Because the "profile” of this victim included only four specific responses to the alleged incident, the trial judge accordingly limited the expert’s testimony. Although the expert’s testimony was limited, on cross-examination, redirect examination and recross examination the testimony went beyond the scope of the appropriate limitation. The net result of Ms. Smietanka’s testimony was exposure of the jury to a wide range of behavioral characteristics attributed to the "syndrome” generally. However, Ms. Smietanka did not specifically testify with regard to the "syndrome,” but rather spoke only in terms of general behavioral patterns. Further, the word syndrome was not used, nor was there any mention of definitional behaviors commonly associated with child sexual abuse syndrome. Thus the jury was not left with the impression that there exists a collective set of behaviors attributable to sexually abused children. In this light, Ms. Smietanka continued to be objective and was acting in an advisory role.
Additionally we note that Ms. Smietanka, as the treating professional, was allowed to give an opinion as to the particular child victim. Specifically, on cross-examination she testified:
Q. Is there anything that is in fact inconsistent with sexual abuse?
A. Yes. There are some things that are very inconsistent with sexual abuse, and those are indicators that you look for when you are doing an initial diagnosis to set up a treatment plan.
Q. I see. Are any of those things that you’ve seen in this case?
A. In this case I have not seen things that would lead me to believe that this particular child was not sexually abused. I have seen things that would lead me to believe that, given the set of experiences and the circumstances, that they would fit the criteria for someone who has been sexually abused.
This is an example of a line of questioning which, on direct examination, would be inappropriate. However, it was defense counsel who opened the door to this line of questioning and who elicited this response from the testifying expert. Defendant’s question was direct, and he left open the possibility that the expert would respond negatively and in a manner that could be construed as an expert conclusion with regard to the truthfulness of the victim’s allegations. On direct examination, similar testimony crosses the line of acceptability, yet in this case reversal is not required in view of the fact that the response was brought out by defendant. Defendant cannot now complain that the expert’s testimony served to vouch for the complainant’s credibility when he allowed and in fact drew out the response. To hold otherwise would allow defendant an appellate parachute to escape conviction because of damaging testimony that turns the tide toward the believability of the complainant’s allegations. Although we would hold that it is only appropriate to allow a background explanation of the behaviors at issue, the increased scope of the testimony under the facts of this case did not prejudice defendant; thus, reversal is not warranted.
Accordingly, in Beckley, we would affirm the rulings of the lower courts.
In Badour the trial court disallowed testimony concerning the "fixed syndrome” as a predictor of sexual abuse because it lacks sufficient scientific reliability. However, the trial judge ruled "that an expert, on their [sic] own experience, and training, and knowledge, can make observations and give . . . their conclusions about those observations, even to the degree that, in their opinion, these children, or this child, showed indicia of being sexually abused.”
Unlike Beckley, the trial court in Badour was not sensitive to the need to restrict the expert’s testimony and failed to address the purpose for which the evidence was admitted. The trial court allowed expert testimony without consideration regarding whether the behaviors of this victim were an issue in the case. Further, the trial court made no determination as to whether the evidence would be helpful to rebut any inference that would necessarily result when the complainant’s post-incident behavior became an issue in the case. We do note that the trial judge did not have an opportunity to exercise discretion in this area because the expert was the first witness called to testify. Even so, the net effect of the trial court’s ruling was to allow the expert to give testimony beyond that necessary to help the jury to understand the victim’s behavior. The testimony was not limited to background information; thus, the expert’s role was heightened from that of advisor to one of advocate. The consequences of the ruling were to allow the expert to vouch for the complainant’s credibility which left the jury with the impression that, in the expert’s opinion, the victim had in fact been abused.
Because the testimony in Badour exceeded the scope of the rules announced, we would reverse and remand the case for a new trial.
CONCLUSION
On the basis of the origins, the purpose, and the limitations of the so-called child sexual abuse syndrome, we are unwilling to have such evidence introduced as a scientific tool, standing on its own merits as a doctrine or bench mark for determining causality in child sexual abuse cases. However, we think, as do so many jurisdictions who have grappled with the phenomenon, that behavior attributed to the syndrome has a place in expert evidence jurisprudence in child sexual abuse cases. There has developed a body of knowledge and experience about the symptomatology of child abuse victimization. We therefore conclude and would hold that persons otherwise properly qualified as experts in dealing with sexually abused children should be permitted to rely on their own experience and their knowledge of the experience of others to rebut an inference that specific behavioral patterns attributed to the victim are not uncharacteristic of the class of child sexual abuse victims. Such witnesses should be permitted to testify regarding characteristics of sexually abused children so long as it is without reference to a fixed set of behaviors constituting a "syndrome.” It should, therefore, be the knowledge of the expert that carries the day, not the "syndrome” doctrine. Expert testimony should be admissible only to the extent that it is directed towards providing an explanation of a specific behavior attributable to the complainant.
Further, because syndrome evidence is not a technique or principle which can predict abuse and its use is merely to explain behavior, the Frye/Davis test is inapplicable. The evidence is only an expert’s opinion which explains and describes probable responses to a traumatic event.
Badour should be reversed and remanded for a new trial, and Beckley affirmed.
Levin and Griffin, JJ., concurred with Brickley, J.
MCL 750.520b; MSA 28.788(2).
People v Beckley, 430 Mich 858 (1988); People v Badour, 432 Mich 851 (1989).
Defendant admits having a drinking problem.
The victim testified that she was crying and very upset; however, her grandmother stated that she was not crying and was her "usual self.”
Prior to trial, the prosecution filed a motion to endorse Smietanka as an expert witness. The testimony given at the pretrial hearing was substantially the same as that given at trial.
In Stull, a rape counselor was allowed to testify on the basis of her training and observations of the complainant as to whether or not her behavior was consistent with the profile of a rape victim. 127 Mich App 19.
In June, 1984, the victim was referred to Ms. Smietanka for diagnosis and treatment by the Muskegon County Department of Social Services. Ms. Smietanka counseled her on three occasions.
"Daughters United is a group for child victims of sexual abuse.” Daughters United facilitates a "group atmosphere, talking about what happened to them, their feelings about it, the girls are in . . . different phases of dealing with a child sexual abuse problem; and that helps — the group work helps the individuals to make progress, as well as seeing them individually also.”
Testimony about specific behavior exhibited by the victim was also received from Regina Woods, the complainant’s foster mother.
Although objected to at trial, the propriety of Dr. Shinedling’s testimony is not at issue on appeal.
“Syndrome type” testimony is behavioral characteristics collectively associated with the syndrome which would suggest that the victim was diagnosed as possessing the syndrome. The net result of syndrome type testimony is an opinion that abuse in fact occurred.
People v Beckley, 161 Mich App 120; 409 NW2d 759 (1987); People v Badour, 167 Mich App 186; 421 NW2d 624 (1988).
People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 App DC 46; 293 F 1013 (1923).
Because of the resolution of the other issues raised, we find it unnecessary to address this issue.
The "syndrome” theory in these cases is most commonly labeled "child sexual abuse accommodation syndrome.” Other documented syndromes include: battered child syndrome, battered wife syndrome, battering parent syndrome, separation trauma and rape trauma syndrome. See, generally, Cohen, The unreliability of expert testimony on the typical characteristics of sexual abuse victims, 74 Georgetown L J 429, 448-451, citing State v Danielski, 350 NW2d 395 (Minn App, 1984).
The American Psychiatric Association (apa) does not recognize child sexual abuse accommodation syndrome as a mental disorder. Rather the Diagnostic & Statistical Manual of Mental Disorders (3d rev ed) (dsm-hi) defines "syndrome” generally. The dsm-iii is the apa’s official manual of recognized mental disorders. "Syndrome” is defined as "a group of symptoms that occur together and that constitute a recognizable condition.” The term " '[s]yndrome’ is less specific than 'disorder’ or 'disease.’ The term 'disease generally implies a specific etiology or pathophysiological process.” Dsm-ui, Appendix C, p 405.
Although the dsm-iii does not specifically define child sexual abuse accommodation syndrome, it does explain and recognize post-traumatic stress disorder. Some experts rely on this disorder as a framework for diagnosing and treating persons manifesting sexual abuse syndrome.
A syndrome, however, is not considered a diagnosis by the medical community; rather, it is a collection of related symptoms. Whether the pattern of symptoms can constitute a diagnosis is determined in part by whether a common underlying pathological process can be identified as the causal agent of the pattern of symptoms. Further, the underlying pathological process must be recognized as a disorder within a standard diagnostic manual. The symptom pattern is not assigned the label of a diagnosis, but rather, the symptom pattern is evidence of the underlying pathological process to which it is causally connected. For these reasons, it is not medically proper to diagnose the existence of a syndrome. [Lorenzen, The admissibility of expert psychological testimony in cases involving the sexual misuse of a child, 42 U Miami L R 1033, 1046-1048 (1988).]
We note that there is an admissible per se approach which is most readily identified with adult cases where "rape trauma syndrome” evidence is admitted to show lack of consent. However, this theory has not been applied to child sexual abuse cases. See, e.g., State v Huey, 145 Ariz 59; 699 P2d 1290 (1985), State v Marks, 231 Kan 645; 647 P2d 1292 (1982), State v Allewalt, 308 Md 89; 517 A2d 741 (1986), and State v Liddel, 211 Mont 180; 685 P2d 918 (1984).
The Kim court, in a footnote, without saying it was controlling, observed that the trial court refused to allow the testimony as substantive evidence. Id. at 600, n 4.
See, generally, State v Hall, 406 NW2d 503 (Minn, 1987).
161 Mich App 129.
FRE 702, advisory committee notes. See also People v Whitfield, 425 Mich 116; 388 NW2d 206 (1986).
People v Kosters, 175 Mich App 748; 438 NW2d 651 (1989).
People v Stull, 127 Mich App 14; 338 NW2d 403 (1983), lv den 422 Mich 939 (1985).
People v Reinhardt, 167 Mich App 584; 423 NW2d 275 (1988), lv den 430 Mich 874 (1988).
People v Stricklin, 162 Mich App 623; 413 NW2d 457 (1987).
People v Draper, 150 Mich App 481; 389 NW2d 89 (1986), lv den 431 Mich 867 (1988).
The issue in Jenkins was whether or not a psychologist was competent to give a medical opinion with regard to a mental disease or defect. The defendant raised an insanity defense and presented three psychologists who testified that he had a mental disease on the date of the alleged offenses. The trial court instructed the jury to disregard this testimony. However, the appellate court stated:
The general rule is that "anyone who is shown to have special knowledge and skill in diagnosing and treating human ailments is qualified to testify as an expert, if his learning and training show that he is qualified to give an opinion on the particular question at issue.” "It is not essential that the witness be a medical practitioner.” [Id. at 307, quoting 32 CJS, Evidence, § 537, pp 261-262 (1942).]
Michigan has regulation and licensing requirements for the practice of psychology. MCL 333.18201 et seq.; MSA 14.15(18201) et seq.
Only in Badour did the defendant object to the experts’ qualifications.
MRE 401, 402.
MRE 702.
Expert opinions should only be excluded when " 'they are unhelpful and therefore superfluous and a waste of time.’ ” Zimmerman, 385 Mich 473 (Williams, J., dissenting). See also People v Bowker, 203 Cal App 3d 385, 396; 249 Cal Rptr 886 (1988), where Justice Benke, concurring, wrote that the proper test was "whether the proffered evidence will be of any assistance or appreciable help to the fact-finder.” He quoted from a California Supreme Court case which further explained the appropriate standards:
"The emphasized words . . . make it clear that the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would 'assist’ the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information, i.e., when 'the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.’ ” [Id. at 396-397, quoting People v McDonald, 37 Cal 3d 351, 367; 208 Cal Rptr 236; 690 P2d 709 (1984). Emphasis in Bowker, citations omitted.]
The American Psychiatric Association, in its definition of post-traumatic stress disorder has stated that understanding the "development of characteristic symptoms following a psychologically distressing event ... is outside the range of usual human experience . . . DsM-m, n 15 supra, § 309.89, p 247. Rape and assault are included within the list of stressors which could produce posttraumatic stress disorder.
In State v Middleton, 294 Or 427; 657 P2d 1215 (1983), the Oregon Supreme Court relied on the responses of the jury pool during voir dire to support its conclusion that the average individual is unfamiliar with the emotional trauma associated with sexual assault. The Middleton court noted that of the eighteen prospective jurors questioned, fifteen people had never personally been exposed to an individual who had been sexually abused. Two of the prospective jurors had heard reports of abuse and the third was excused because she had extensive knowledge of sexual abuse. Without the expert testimony "jurors may impose standards of normalcy on child victim/ witnesses who consistently respond in distinctly abnormal fashion.” Id. at 440. (Roberts, J., concurring.)
Generally, courts draw comparisons to crimes against property. In State v Myers, 359 NW2d 604, 610 (Minn, 1984), the court reasoned that jurors have the competence within their common experience to test the credibility of witnesses for "most crimes.” For example, "[i]f the victim of a burglary failed to report the crime promptly, a jury would have good reason to doubt that person’s credibility.” However, the court found that assessment of a witness in a sexual abuse case was out of the common experience of the jury.
Similarly, in State v Middleton, n 34 supra, the court reasoned that a jury would have good cause to doubt the credibility of a burglary victim who after making an initial report recanted the allegation several times before trial. Further, in Middleton, the court stated that it was within the common experience of jurors to weigh the credibility of victims of a physical assault because they are capable of personalizing the emotions and trauma. However, familial sexual abuse produces a "unique trauma” beyond a juror’s understanding. Id. at 440. (Roberts, J., concurring.)
Comment, Checking the allure of increased conviction rates: The admissibility of expert testimony on rape trauma syndrome in criminal proceedings, 70 Va L R 1657 (1984).
Girdner, Out of the mouths of babes, 5 Cal Law 57 (June, 1985).
See, generally, Cacciola, The admissibility of expert testimony in intrafamily child sexual abuse cases, 34 UCLA LR 175, 178-179 (1986).
In People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), this Court recognized that the principle issue in cases involving criminal sexual conduct is the credibility of the complainant. See also People v LaLone, 432 Mich 103; 437 NW2d 611 (1989).
See n 15.
People v Barbara, 400 Mich 352, 376; 255 NW2d 171 (1977).
State v Rimmasch, 775 P2d 388, 396 (Utah, 1989).
In Young, results of a blood analysis obtained through the use of serological electrophoresis were admitted into evidence for the purpose of showing that defendant fit within the class of people who could have committed the charged offense. The trial court did not hold an evidentiary hearing as to the admissibility of the evidence. This Court remanded the case to the trial court for the purposes of conducting an evidentiary hearing to determine the admissibility of the test results. The Court noted that
[although we do not doubt that the technique of electrophoresis enjoys general acceptance as a diagnostic and a research tool, the record before us is devoid of impartial and disinterested expert opinion that serological electrophoresis is sensitive and specific in measuring what it purports to measure. [Id. at 22.]
People v Soltis, 104 Mich App 53; 304 NW2d 811 (1981), modified on other grounds 411 Mich 1037; 309 NW2d 186 (1981) (spectropho tometer test results); People v Wesley, 103 Mich App 240; 303 NW2d 194 (1981) (fingernail identification procedure); People v Ebejer, 66 Mich App 333; 239 NW2d 604 (1976); Dudek v Popp, 373 Mich 300; 129 NW2d 393 (1964) (accident reconstruction evidence); People v Stark, 73 Mich App 332; 251 NW2d 574 (1977); Moreman v Kalamazoo Co Rd Comm, 129 Mich App 584; 341 NW2d 829 (1983) (chemical analysis of blood urine or breath to determine alcohol content); People v Farnsley, 94 Mich App 34; 287 NW2d 361 (1979) (causes of fires, controlled substance analysis); O’Dowd v Linehan, 385 Mich 491; 189 NW2d 333 (1971); People v Williams, 26 Mich App 218; 182 NW2d 347 (1970) (footprints, palm prints, and fingerprints); People v Watkins, 78 Mich App 89; 259 NW2d 381 (1977); People v Collins, 43 Mich App 259; 204 NW2d 290 (1972) (hair samples); People v Ferency, 133 Mich App 526; 351 NW2d 225 (1984) (speed radar); People v O’Brien, 113 Mich App 183; 317 NW2d 570 (1982); People v Riemersma, 104 Mich App 773; 306 NW2d 340 (1981) (dog-tracking evidence); People v Barbara, n 41 supra (polygraph tests); People v Cox, 85 Mich App 314; 271 NW2d 216 (1978) (truth serum); People v Tobey, 401 Mich 141; 257 NW2d 537 (1977) (voiceprints); People v Gonzales, 415 Mich 615; 329 NW2d 743 (1982) (hypnosis).
Lorenzen, n 16 supra at 1035.
We do not dispute the analysis employed by Justice Boyle in an ordinary case where expert testimony is admissible. However, for the reasons stated above, these cases present unusual circumstances.
We recognize that the use of syndrome type, expert testimony, is still in its embryonic stage, and thus, as behavioral science experts continue to accumulate information on children’s behavioral reactions there is the possibility that syndrome testimony will become a more reliable source of evidence. To this extent, as the science develops, it may move us to reevaluate the question and allow admission of the evidence beyond the limitations expressed today.
People v Bledsoe, 36 Cal 3d 236; 203 Cal Rptr 450; 681 P2d 291 (1984).
Myers, Child Witness Law & Practice (New York: John Wiley & Sons, 1989 cumulative supplement), § 4.17C.
In Bledsoe, n 48 supra, the court concluded:
Given the history, purpose and nature of the rape trauma syndrome concept, we conclude that expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove that the witness was raped. We emphasize that our conclusion in this regard is not intended to suggest that rape trauma syndrome is not generally recognized or used in the general scientific community from which it arose, but only that it is not relied on in that community for the purpose for which the prosecution sought to use it in this case, namely, to prove that a rape in fact occurred. Because the literature does not even purport to claim that the syndrome is a scientifically reliable means of proving that a rape occurred, we conclude that it may not properly be used for that purpose in a criminal trial. [36 Cal 3d 251. Cited with approval in People v Pullins, 145 Mich App 414, 421; 378 NW2d 502 (1985).]
In fact, those experts who have tried to establish some universal symptomology of sexual abuse victims sometimes seem to belie their own theory. An employee of the sexual assault center testified in [State v] Maule [35 Wash App 287; 667 P2d 96 (1983)] that the typical victim of intrafamily sexual abuse shows regressive behavior and acts like a younger child. Had she read some of the most widely cited literature on the subject, the employee might have found that, on the contrary, the typical victim of sexual abuse displays "pseudomature seductive behavior.” The same expert testified that it is typical for the child to act withdrawn, but had she read an often cited paper on characteristics of sexual abuse victims, she might have found that such children typically display " 'acting out’ behavior.” In Kim, the expert testified that abused children typically display a negative view of sex, but is this consistent with a symptomology of "sexual abuse syndrome” that includes frequent masturbation and/or pseudoseductive behavior? [Note, The unreliability of expert testimony on the typical characteristics of sexual abuse victims, 74 Georgetown L J 429, 441 (1985).]
Myers, Expert testimony in child sexual abuse litigation, 68 Neb LR 1, 61 (1989).
See comment, n 36 supra, for a detailed description of the studies conducted concerning sexual abuse syndrome.
The analysis set forth in Justice Boyle’s concurring opinion centers only upon relevancy as a rationale for admissibility of syndrome-type evidence. As in many other evidentiary situations, because evidence is relevant and will aid the jury in understanding the issues does not preclude other considerations that argue for limitation.
This Court in People v Petrella, 424 Mich 221, 267; 380 NW2d 11 (1985), expressly recognized that "[djespite the behavioral patterns of rape victims that have been observed (labeled by some as 'rape trauma syndrome’), we are not persuaded that it is psychologically or sociologically sound to assume that there is a 'normal’ or 'average’ emotional reaction to being raped.”
Lorenzen, n 16 supra at 1043-1044.
Myers, n 49 supra.
People v Moran, 151 Ariz 378, 385; 728 P2d 248 (1986), citing People v Bledsoe, n 48 supra at 250; United States v Azure, 801 F2d 336 (CA 8, 1986).
State v Myers, n 35 supra at 610.
74 Georgetown L J, n 15 supra at 440.
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Mackenzie, P.J.
This case arises from defendant Michigan Public Service Commission’s September 21, 1970, order granting defendant The Detroit Edison Company a steam rate increase for a certain service area located in the City of Detroit. Plaintiffs, customers of defendant Edison who were affected by the steam rate increase, filed an action in circuit court challenging the rate increase on the ground, inter alia, that proper notice of the hearing held by defendant commission on defendant Edison’s requested rate increase had not been given. It is undisputed that the only third party to receive formal notice of the hearing was the City of Detroit. The circuit court agreed with plaintiffs that they were entitled to notice of the hearing and that adequate notice had not been given. The circuit court remanded to defendant commission, ordering it to give adequate notice to steam customers in the affected service area and to hold another hearing for the purpose of taking additional evidence to determine whether the rate increase granted on September 21, 1970, was reasonable. However, the circuit court rejected plaintiffs’ request that defendant Edison be ordered to refund all monies collected pursuant to the steam rate increase order of September 21, 1970, and to cease charging plaintiffs at the increased rate.
The case was then reheard by defendant commission, after giving notice to steam customers in the affected service area and, on March 14, 1977, defendant commission issued an order finding that the rate increase granted on September 21, 1970, was reasonable. This March 14, 1977, order of defendant commission was affirmed by the circuit court in an opinion and order dated September 11, 1981. It is from this order that plaintiffs now appeal as of right. Prior to this order of the circuit court, the case had been remanded to defendant commission a second time pursuant to a stipulation by the parties, and defendant commission had again affirmed its original rate increase order of September 21, 1970. As a related matter, plaintiffs also filed, in April of 1977, a second suit challenging defendant commission’s order of March 14, 1977. At a hearing held on November 18, 1977, the circuit court granted defendants’ motion for accelerated judgment under GCR 1963, 116.1(4) on the ground that this suit involved the same claim as the first pending suit filed by plaintiffs. Plaintiffs also appeal by right from this order of the circuit court.
Plaintiffs argue on appeal that the circuit court correctly found that procedural due process and MCL 460.6a; MSA 22.13(6a) (hereinafter referred to as § 6a) entitled plaintiffs, as individual steam customers of defendant Edison, to notice of the hearing before defendant commission on defendant Edison’s requested steam rate increase, and that the notice given only to the City of Detroit was not adequate. Plaintiffs assert, however, that the court erred in simply remanding to defendant commission for adequate notice and another hearing without declaring defendant commission’s September 21, 1970, rate increase order void ab initio and without ordering defendant Edison to refund monies collected pursuant to that void order. Defendants argue alternatively that neither procedural due process nor statute entitled plaintiffs to notice, that the notice given to the City of Detroit satisfied any right of plaintiffs to notice, and that, even if adequate notice was not given, the circuit court properly remanded to defendant commission for another hearing with adequate notice thereof and properly rejected plaintiffs’ arguments that the September 21, 1970, order was void ab initio.
We will assume without deciding that the circuit court correctly concluded that procedural due process and § 6a entitled plaintiffs to notice of the hearing before defendant commission and that the notice given to the City of Detroit was not adequate notice to plaintiffs. We decline to decide these issues because the result we reach in this case makes it unnecessary to do so. Also, we note that the present language of § 6a pertaining to notice, as amended in 1982, differs from that which existed in 1970, the time pertinent to the instant case.
We conclude that the trial judge, upon finding there was inadequate notice to satisfy due process and the notice requirement of § 6a, was not required to declare the original rate increase order void ab initio and to order a refund to plaintiffs. Rather, we find the court acted properly in remanding to defendant commission for another hearing with adequate notice, leaving intact the rate increase previously granted unless found to be unreasonable upon rehearing.
Turning to the particular arguments made by plaintiffs, we reject their contention that the September 21, 1970, rate increase order was void because adequate notice was a prerequisite to defendant commission’s invocation of jurisdiction. Section 6a, as it existed in 1970, provided in pertinent part as follows:
"When any finding or order is sought by any gas, telephone or electric utility to increase its rates and charges or to alter, change or amend any rate or rate schedules, the effect of which will be to increase the cost of services to its customers, notice shall be given within the service area to be affected.” MCL 460.6a; MSA 22.13(6a).
While this language of § 6a requires notice, we do not interpret it to make notice a prerequisite to jurisdiction of defendant commission. Nor does MCL 460.6; MSA 22.13(6) (hereinafter referred to as § 6), which grants defendant commission jurisdiction to regulate public utilities, contain any language indicating that notice is a jurisdictional requirement.
We find G & A Truck Line, Inc v Public Service Comm, 337 Mich 300; 60 NW2d 285 (1953), and Consumers Power Co v Michigan Public Utilities Comm, 273 Mich 184; 262 NW 664 (1935), relied on by plaintiffs, distinguishable from the present case. In G & A Truck Line, supra, the Supreme Court held that the commission lacked jurisdiction to grant additions to the permit of the plaintiff, a contract carrier, not only because the commission failed to give notice and conduct a hearing, but also because no application to amend the permit had been filed. The Court explained that the commission could do only those things authorized by statute. Although the Court in G & A Truck Line, supra, did not expressly refer to MCL 477.2; MSA 22.549 in its opinion, that statutory provision was applicable to the facts of the case and, at the time of the G & A Truck Line decision, it provided that the commission was vested with "power and authority * * * upon the filing of an application”. In Consumers Power Co, supra, the Court found that the commission was without jurisdiction to order an audit of the plaintiff utility because no hearing or investigation with notice thereof had been conducted. The statute involved in that case was MCL 460.556; MSA 22.156, granting the commission the "power, in connection with any rate or service hearing or investigation, to make such audit” as it deemed necessary. We find that the language of the statutory provisions involved in the present case, § 6 and § 6a, differs from that involved in G & A Truck Line and Consumers Power Co and does not indicate that notice is a prerequisite to defendant commission’s jurisdiction. We also note that here defendant commission did conduct a hearing, albeit without notice to plaintiffs, before issuing its September 21, 1970, rate increase order; in G & A Truck Line, supra, and Consumers Power Co, supra, no hearing was held.
Nor do we agree with plaintiffs that the failure to give notice as required by § 6a of the act rendered the September 21, 1970, rate increase order void. Plaintiffs, in support of their position, cite Kirkby v Public Service Comm, 320 Mich 608; 32 NW2d 1 (1948). However, that case is distinguishable because there the Court held that the commission’s order granting a transportation certificate to a common carrier was void not merely because of the commission’s failure to give notice, as required by the applicable statute, but also because the certificate authorized transportation services beyond that which had been applied for, and thus the commission had exceeded its statutory powers. Plaintiffs also rely on Baura v Thomasma, 321 Mich 139; 32 NW2d 369 (1948), where the Court deemed void a permit granted by a zoning board because the notice of hearing given by the board did not comply with the statutory requirements. Baura, and indeed Kirkby as well, are inapposite to the instant case in that neither involved a utility’s request for a rate increase, a factual setting which is unique in that rate orders of defendant commission may operate only prospectively and not retroactively. Michigan Bell Telephone Co v Public Service Comm, 315 Mich 533; 24 NW2d 200 (1946). Consequently, if a rate order were held void for failure to give notice, in subsequent proceedings a rate adjustment could be made only from the time of those subsequent proceedings, and thus the possibility of a rate adjustment for the time period between the original order and the subsequent proceedings would be irretrievably lost.
The holding in Northern Michigan Water Co v Public Service Comm, 381 Mich 340; 161 NW2d 584 (1968), supports our conclusion that the failure to comply with the statutory notice requirement did not render the September 21, 1970, rate order void and mandate that plaintiffs be given a refund. In Northern Michigan Water Co, supra, the Court found that the plaintiff utility’s failure to file its rate schedule as required by statute did not alone make those rates illegal and warrant a refund to the consumers. Rather, the Court held that the reasonableness of the rates was the test of their legality, and a refund could be ordered only if the rates were found to be unreasonable. See also Pennwalt Corp v Public Service Comm, 109 Mich App 542, 545; 311 NW2d 423 (1981), lv den 417 Mich 893 (1983). In the present-case, although the statutory requirement of notice of the hearing was presumably not complied with, the rate approved by defendant commission’s order of September 21, 1970, was never found unreasonable by defendant commission or the circuit court; thus, the circuit court did not err in refusing to declare that order void and to grant plaintiffs a refund.
With respect to the due process violation, which we have assumed occurred in the present case by the failure to give plaintiffs notice of the original hearing, we reject plaintiffs’ contention that this procedural due process defect required the circuit court to declare the September 21, 1970, rate increase order void and to order a refund to plaintiffs. Where a due process violation is found because of the failure to file adequate notice of a hearing, the remedy is to remand for additional proceedings conforming with due process requirements. See, e.g., Lawrence v Dep’t of Corrections, 81 Mich App 234, 239; 265 NW2d 104 (1978). This was done in the present case. The circuit court ordered that notice of the rehearing be given to steam customers in the affected service area, and at the rehearing plaintiffs were afforded an opportunity to present additional evidence to the commission. Plaintiffs’ suggestion in their brief on appeal that this rehearing was merely a perfunctory proceeding after which the commission simply "rubber-stamped” its original rate increase order, and that on rehearing the burden of proof was shifted to plaintiffs, is not supported by the record. The March 14, 1977, decision of defendant commission reflects that it fully considered the evidence and arguments presented by plaintiffs at the rehearing and that it recognized that, just as at any original hearing on a requested rate increase, on rehearing the burden remained on defendant Edison to prove that the rate increase was reasonable.
Due process did not require that, in addition to a remand for rehearing, the September 21, 1970, rate increase order be declared void and that defendant Edison be ordered to refund to plaintiffs the additional monies paid under that order and to cease charging plaintiffs at the increased' rate. Such a resolution would have in effect penalized defendant Edison since, because defendant commission may not issue retroactive orders, defendant Edison would have automatically lost any opportunity to receive a rate increase for the period of time from the original rate increase order to the date of defendant commission’s decision on rehearing, regardless of how justified an increase for that period might have been and despite the fact that defendant Edison had timely filed an application for a rate increase for that period. Underlying the right to due process are the principles of fair play and fundamental fairness. Dodge v Detroit Trust Co, 300 Mich 575, 617-618; 2 NW2d 509 (1942). Surely, after finding a deprivation of procedural due process based on these principles, they should not then be contravened in fashioning a remedy in response to that deprivation. We find that the remand for rehearing was wholly adequate to remedy the failure to notify plaintiffs of the original hearing. On rehearing, defendant commission could have rescinded its September 21, 1970, rate increase order as unreasonable and granted plaintiffs a refund, which would have left plaintiffs in the same position as if they had been given notice of and successfully participated in the original proceeding. We note that the circuit court guaranteed that a refund would be paid if plaintiffs prevailed at the rehearing by requiring defendant Edison to post a bond in the amount of ten million dollars.
Supporting our conclusion that the circuit court, after finding a violation of the statutory and due process right to notice, reached the proper and fair resolution are Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624; 209 NW2d 210 (1973), and Atlantic CL R Co v Florida, 295 US 301; 55 S Ct 713; 79 L Ed 1451 (1934). In Michigan Consolidated Gas Co, supra, the Court upheld the lower court’s issuance of a temporary injunction which granted a rate increase to the utility pending a determination by the commission and provided that, if the commission disallowed the increase, the customers would receive a refund, which the court secured by requiring the utility to post a bond. The Court explained that this use of a temporary injunction was the "best method for preserving the rights of all parties” since "rates cannot be made to operate retroactively”. Michigan Consolidated Gas Co, supra, p 640. In Atlantic CL R Co, supra, the agency’s original railroad freight charge increase order was reversed for incomplete factual findings; on remand the agency made the same order it had before but this time provided adequate fact-findings. This subsequent order was affirmed, and the railroad’s customers then argued that the original order was of no effect since reversed and thus sought a refund of the additional charges paid under it up until the time the subsequent order was issued. The United States Supreme Court, in finding that equitable principles of restitution did not require that the customers be given a refund, noted that the agency could set rates only prospectively and not retroactively. Atlantic CL R Co, supra, 295 US 311. Similarly, in the present case the best method of remedying the failure to notify plaintiffs of the original hearing while preserving the rights of the parties was to remand for rehearing with adequate notice and to require defendant Edison to post a bond but to reject plaintiffs’ request that the original order be held void and that defendant Edison be ordered to refund and cease charging at the increased rate, in view of the fact that defendant commission is precluded from setting rates retroactively.
We reject as sophistical plaintiffs’ argument that defendant commission’s March 14, 1977, order is invalid because it imposes an unlawful retroactive rate increase. Defendant commission does not, of course, have the statutory authority to issue retroactive orders. Michigan Bell Telephone Co, supra. However, defendant commission did have the statutory authority to rehear the present rate case, MCL 460.351; MSA 22.111, and its March 14, 1977, order pursuant thereto merely upheld as reasonable its September 21, 1970, prospective rate in crease order and did not newly establish rates to be applied retroactively.
Plaintiffs also challenge on its merits the March 14, 1977, order of defendant commission finding the rate increase previously granted to be reasonable. More specifically, plaintiffs argue that defendant commission erred in using a "capital attraction” test, under which defendant Edison’s entire operation including both its steam and electrical divisions was considered, rather than the "comparable earnings” test proposed by plaintiffs, under which only defendant Edison’s steam division would be considered and compared to the average rate of return of other steam utilities. Plaintiffs also argue that defendant commission erred in refusing to apply the "declining industry” theory proposed by plaintiffs; this theory essentially states that, where a utility is a declining industry, a rate increase is futile since it will only serve to drive away customers and thus not succeed in producing the desired rate of return. The circuit court rejected plaintiffs’ arguments and affirmed defendant commission’s March 14, 1977, order, finding that defendant commission’s adoption of the "capital attraction” test and its conclusion that defendant Edison’s steam operation was not a "declining industry” were supported by competent, material, and substantial evidence and were not contrary to law. We agree.
The standard of judicial review of a decision of defendant commission is whether that decision is lawful and supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; Chicago, M, St P & P R Co v Public Service Comm, 74 Mich App 678, 680; 254 NW2d 39 (1977), lv den 401 Mich 817 (1977). The burden is on plaintiffs to show by clear and con vincing evidence that defendant commission’s March 14, 1977, order was unlawful or unreasonable. MCL 462.26; MSA 22.45; City of Ishpeming v Public Service Comm, 370 Mich 293; 121 NW2d 462 (1963). The reviewing court is to give due deference to defendant commission’s administrative expertise and is not to substitute its judgment for that of defendant commission. Yankoviak v Public Service Comm, 349 Mich 641, 648; 85 NW2d 75 (1957); Chicago, M, St P & P R Co, supra.
We will not attempt to summarize the prodigious amount of evidence presented to defendant commission. Suffice it to say that plaintiffs have failed to meet their burden of proving that defendant commission’s March 14, 1977, decision was unlawful or not supported by competent, material, and substantial evidence. That decision reflects that defendant commission carefully considered plaintiffs’ proposed "comparative earnings” test and "declining industry” theory, and concluded, based on the evidence presented, that neither could be properly applied in the present case. We note that the "capital attraction” test employed by defendant commission is lawful, see Michigan Bell Telephone Co v Public Service Comm, 332 Mich 7, 38; 50 NW2d 826 (1952), and in the present case it was uncontroverted that defendant Edison’s common stock is issued for it as an entity as a whole and not separately for the steam and electric divisions. We also note that, with respect to plaintiffs’ "declining industry” theory, there was evidence showing that the amount of steam sold by defendant Edison increased during the years 1968 to 1970, and during the period February 1, 1970, to August 1, 1972, new steam customers were added, many customers increased consumption, and there was a gain in revenue of approximately $1.4 mil lion in new-customer revenue over that lost to gas conversion. While there was other evidence supporting plaintiffs’ proposed "comparative earnings” test and "declining industry” theory, whether the latter should be applied or not based on the facts of the present case were issues calling for defendant commission’s expertise, and thus we must accord due deference to defendant commission’s choice between these reasonably differing views. Chicago, M, St P & P R Co, supra.
In view of the foregoing, we need not address the issues raised by defendants on cross-appeal. Also, although plaintiffs have appealed from the circuit court’s grant of accelerated judgment for defendants in the related case, plaintiffs have admitted that they do so based on the same arguments which we have discussed and rejected above. Plaintiffs do not challenge the propriety of that grant of accelerated judgment per se based on GCR 1963, 116.1(4), and thus that issue is not before us.
Affirmed. No costs, a public question being involved. | [
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R. B. Burns, J.
On March 16, 1972, plaintiff, Midwest Bridge Company, entered into a contract with defendant, Michigan Department of Transportation (MDOT), to perform grading, install drainage structures, alter utilities and surface ser vice drives on 1-696 in the City of Warren. Certain items of work called for under this contract were subcontracted by Midwest to the Sivier Construction Company. The subcontract between Midwest and Sivier was approved and accepted by MDOT.
The contracts between Midwest and MDOT and between Midwest and Sivier were unit price contracts. Under unit price contracts, the contractor • and subcontractor are paid for each unit of work performed, in contrast to a lump-sum contract where the contractor is paid for the total amount of work performed. The determination of how much work was performed in both contracts was made solely by MDOT. During the course of construction, MDOT would prepare biweekly estimates of work performed based upon measurements from the job site and complex calculations performed under the supervision of MDOT’s project engineer. The biweekly estimates also designated what portion of the work was performed by Sivier. On the basis of the biweekly estimates, biweekly progress payments were made by MDOT to Midwest, less a certain percentage held by MDOT as a retention fund. In reliance on the biweekly estimate, Midwest then paid Sivier out of the progress payment for its work performed.
The project was officially completed in December, 1974. On April 15, 1976, MDOT indicated to Midwest that it had overestimated the amount of work performed by Sivier, and thus was going to withhold $105,939.74 from the retention fund otherwise due Midwest. By this time, however, Sivier was dissolved as a corporation and there remained no assets available to allow Midwest to recoup the overpayments made in reliance on MDOT’s biweekly estimates. The final estimate of the contract amount was entered on March 22, 1978. According to the final estimate, Sivier was overpaid by Midwest in the amount of $105,939.74. Consequently, MDOT withheld this amount from the retainage due Midwest.
Midwest then filed suit against MDOT alleging breach of contract and seeking recovery of the $105,939.74. A bench trial was held in the Court of Claims. The trial court found in favor of Midwest and awarded it $105,939.74. MDOT now appeals and we affirm.
Midwest contended at trial that the method by which it paid Sivier was dictated by the state, and that this method necessitated reliance on the progress estimates made solely by MDOT. Midwest claimed, therefore, that MDOT breached its warranty to make accurate measurements and estimates on which it knew plaintiff must rely.
Although this issue is one of first impression in Michigan, it is closely analogous to the issue presented in Hersey Gravel Co v State Highway Dep’t, 305 Mich 333; 9 NW2d 567 (1943). In Hersey, bidding opened on a contract calling for excavation of approximately 373,000 cubic yards of earth and 17,000 cubic yards of rock. Plaintiff won the bid, and during performance completed excavation of an additional 32,000 cubic yards of earth and 11,000 cubic yards of rock. Plaintiff sought compensation for the additional excavations completed. The trial court found for plaintiff, holding that a warranty was made in connection with the excavations, and that this warranty had been breached because of the misstatement of the conditions actually existing. On appeal, defendant argued that the contract required plaintiff to satisfy itself regarding actual soil conditions, and therefore defendant did not warrant the contract specifications. The Supreme Court, however, rejected defendant’s argument, stating (305 Mich 340-341):
"This provision put plaintiff on notice, but the notations on the plans had the effect of also advising plaintiff that an investigation had been made by the highway department of the character of the soil along the entire proposed highway. The testimony shows that this investigation extended over a considerable period of time. The period between the time the advertisement appeared asking for bids and the date upon which bids were to be submitted and opened would not suggest to any reasonable bidder that it was necessary for him to make a more extended investigation of soil conditions than was made by plaintiff’s manager, Allswede, who spent two days examining the proposed right of way. Plaintiff complied with the requirements of the proposal and carried out the responsibility to satisfy itself as to actual soil conditions by the examination of its manager of the site of the proposed work.
" 'Undoubtedly the commission’s knowledge of subsoil conditions was superior to that of the plaintiffs, and they tried to acquire this knowledge from it. It is equally true that these facts were not within the fair reasonable reach of the plaintiffs, and there was lack of time for them to obtain this information by an independent investigation before the letting. * * *
" 'The duty rested on the sewer commission to furnish to the plaintiffs in this case all the material information it had in its possession, obtained either by borings or from past experience, as to subsoil conditions in the sewer line, and if it failed to do so, and as a result thereof the plaintiffs were put to large additional expense in completing the contract, they are entitled to recover the reasonable damages sustained by them.’ Davis v Comm’rs of Sewerage, 13 F Supp 672, 681 (WD Ky, 1936).”
Hersey is in accordance with decisions from other jurisdictions. It is well settled that the bidder on a proposal for public work may, when acting in good faith, rely on advertised specifications and estimates when there is nothing in those estimates to indicate that they are made merely by way of suggestion. If reliance is made on the estimates, the bidder is not required to bear increased cost resulting from the errors and miscalculations merely by reason of the fact that he was unable to or did not test their accuracy. 65 Am Jur 2d, Public Works and Contracts, § 177, pp 58-60 and cases cited therein; 16 ALR 1131; W H Knapp Co v State Highway Dep’t, 311 Mich 186; 18 NW2d 421 (1945). Factual inaccuracies in the state’s plans and specifications for a proposed highway construction project may give rise to a cause of action for misrepresentation if the inaccuracies have been relied on by the contractor to his detriment. Kensington Corp v Dep’t of State Highways, 74 Mich App 417; 253 NW2d 781 (1977).
Although the inaccuracies relied on by Midwest in the instant case were not in the plans and specifications, Hersey should apply, as defendant warranted the accuracy of its estimates.
Midwest had no method independent of MDOT’s estimates to calculate the amount of work accomplished by Sivier. Even had Midwest waited until the end of the job to pay Sivier, it was required by statute to pay within 60 days after completion of the job. MCL 570.1101 et seq.; MSA 26.316(101) et seq. Midwest was not notified of the overpayment until two years after completion. Accordingly Midwest would still have been required to rely on the original MDOT estimates had Midwest waited until the end of the job to pay Sivier.
The trial court found that it was necessary for plaintiff to rely on defendant’s erroneous estimates. The court held, therefore, that defendant breached its warranty to make accurate estimates and payments, and awarded damages to plaintiff in the amount withheld by defendant. As the court’s holding was not clearly erroneous, GCR 1963, 517.1, we affirm. | [
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Allen, J.
We agree with Judge Burns that the sentence imposed should run consecutively with defendant’s earlier sentence, but disagree that, because the sentence was consecutive, no credit should be given for the 190 days defendant spent in the county jail awaiting sentencing.
We don’t agree that the granting of the presentence credit, under proper conditions, will destroy the validity of Michigan’s consecutive sentencing law. Our courts have consistently granted credit where the time spent in confinement awaiting trial and prior to the imposition of sentence "bear[s] an intimate and substantial relationship to the crime for which such person is subsequently convicted”. People v Groeneveld, 54 Mich App 424, 427-428; 221 NW2d 254 (1974), lv den 393 Mich 814 (1975); People v Face, 88 Mich App 435, 439; 276 NW2d 916 (1979); People v Tilliard, 98 Mich App 17, 20-21; 296 NW2d 180 (1980); People v Donaldson, 103 Mich App 42, 50; 302 NW2d 592 (1981). Here, defendant was not serving time in jail on his prior conviction for larceny. He was on extended furlough when he committed the second offense. Upon arraignment, bond was set at $5,000 but defendant was unable to post bond in that sum. It was defendant’s inability to post bond on the second offense which caused his incarceration. We can think of no closer or more intimate relationship between the offense charged and the fact of incarceration.
Michigan’s presentence credit statute requires the giving of credit for time served prior to sentence because of lack of bond. MCL 769.11b; MSA 28.1083(2). We don’t believe that that statute is or should be automatically disregarded and held for naught merely because the second sentence is consecutive rather than concurrent. To the extent that People v Shirley Johnson, 96 Mich App 84, 88; 292 NW2d 489 (1980), holds to the contrary, we disagree with that holding.
We therefore amend defendant’s sentence to credit him with the 190 days served prior to sentencing. GCR 1963, 820.1(7).
Affirmed as modified.
D. E. Holbrook, Jr., P.J., concurred. | [
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Wahls, J.
Pursuant to a plea bargain, defendant pleaded nolo contendere to a charge of arson of a dwelling house, MCL 750.72; MSA 28.267, in exchange for dismissal of a charge of malicious destruction of police property, MCL 750.377b; MSA 28.609(2). The plea bargain included a sentencing agreement whereby the parties agreed that defendant would be sentenced to five years’ probation with the condition that he participate in psychiatric counseling and substance abuse treatment. The court accepted the plea and sentenced defendant in accordance with the agreement. However, the court imposed additional conditions on his probation. Defendant now appeals as of right. We affirm.
Defendant first argues that the trial court erred in refusing to allow him to withdraw his plea because there was no factual basis for the plea. However, defendant’s motion to withdraw his plea was untimely under both MCR 6.311(A) and MCR 7.208(B)(1). Therefore, this issue is not preserved for our review. People v Beasley, 198 Mich App 40, 43; 497 NW2d 200 (1993).
Defendant also argues that the trial court erred in placing additional conditions on his probation that were not included in the plea agreement without allowing him an opportunity to withdraw his plea. Therefore, defendant argues, he is entitled to specific performance of the agreement or an opportunity to withdraw his plea. We disagree.
When a prosecutor and a defendant agree to a specific sentence disposition in exchange for a guilty plea, the trial court can either accept or reject it or defer action until the court has had an opportunity to consider the presentence report. People v Killebrew, 416 Mich 189, 206-207; 330 NW2d 834 (1982); MCR 6.302(C)(3). If the court concludes that the sentence is inappropriate to the circumstances or the offender, it is obliged to reject the plea and inform the defendant that it will not accept the plea or be bound by the agreement. Killebrew at 207. Once the court accepts the plea induced by the agreement, the terms of the agreement must be fulfilled. Santobello v New York, 404 US 257, 262; 92 S Ct 495; 30 L Ed 2d 427 (1971); People v Schluter, 204 Mich App 60, 63; 514 NW2d 489 (1994). In Schluter, this Court held that a sentencing court does not have authority under MCL 780.766(2); MSA 28.1287(766)(2) to or der restitution as part of the penalty imposed upon a defendant where the court accepts a guilty plea entered pursuant to a sentencing agreement that does not include any reference to restitution. Schluter at 65-66.
In this case, the plea bargain included a sentencing agreement that defendant would receive five years’ probation with the condition that he participate in psychiatric counseling and substance abuse treatment. The court conditionally accepted the plea as requested by the prosecution because of the absence of the victims. At sentencing, the court sentenced defendant in accordance with the agreement, but placed additional conditions upon his probation. These conditions were that he (1) seek and maintain employment, (2) obtain a ged, (3) pay his court-appointed attorney’s fees, (4) pay supervision costs of $16.50 a month or perform community service, and (5) submit to periodic urinalysis. Some of these conditions were recommended in the presentence report and are conditions to which defendant had no objection at sentencing.
A sentence of probation is an alternative to confining a defendant in jail or prison and is granted as a matter of grace in lieu of incarceration. People v Greenlee, 133 Mich App 734, 736; 350 NW2d 313 (1984). Pursuant to MCL 771.3(1); MSA 28.1133(1), the sentencing court is required to place certain conditions on the sentence of probation. These conditions are that the probationer shall (1) not violate any criminal law of this state or any ordinance of any state municipality, (2) not leave the state without the consent of the court, (3) report to the probation officer, (4) pay a probation supervision fee if convicted of a felony, (5) pay restitution to the victim or the victim’s estate, and (6) pay an assessment ordered under MCL 780.905; MSA 28.1287(905), which is used for the crime victim’s rights fund. In this case, one of the additional conditions placed on defendant’s probation was required under the statute: payment of the supervision fee.
The sentencing court may also "impose other lawful conditions of probation as the circumstances of the case require or warrant, or as in its judgment are proper,” MCL 771.3(4); MSA 28.1133(4). This right includes the imposition of costs incurred in prosecuting the defendant or providing legal assistance to the defendant. Id. In setting additional conditions, a sentencing court must be guided by factors that are lawfully and logically related to the defendant’s rehabilitation. People v Peters, 191 Mich App 159, 165; 477 NW2d 479 (1991); People v Gonyo, 173 Mich App 716, 718; 434 NW2d 233 (1988).
An order of probation is "at all times alterable and amendable, both in form and in substance, in the court’s discretion.” MCL 771.2(2); MSA 28.1132(2). Moreover, there is no requirement that the defendant be given notice or an opportunity to be heard before an amendment. People v Kendall, 142 Mich App 576, 579; 370 NW2d 631 (1985); People v Graber, 128 Mich App 185, 190-191; 339 NW2d 866 (1983). Because probation is also a matter of . grace conferring no vested right to its continuance, a probation order is also revocable. MCL 771.4; MSA 28.1134; Peters, supra.
Because of these unique features of probation, we believe that Schluter is distinguishable. Because probation is a matter of grace in lieu of a prison sentence aimed, in part, at rehabilitation and is at all times alterable and amendable, we believe that a sentencing court may place conditions on a defendant’s probation regardless of whether it was covered in the plea agreement. Nor do we find that the failure to inform defendant of these conditions renders the plea involuntary or the defendant unknowing of the consequences of the agreement. Accordingly, we find that defendant is not entitled to specific performance of the agreement or to withdraw his plea.
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Cynar, P.J.
Following a jury trial, defendant was convicted of assault with intent to rob and steal while armed, MCL 750.89; MSA 28.284, assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to prison terms of from thirty-five to seventy years for the assault with intent to commit robbery conviction, 6½ to ten years for the assault with intent to commit great bodily harm conviction, and two years for the felony-firearm conviction. Defendant appeals as of right.
At approximately midnight on August 2, 1983, Michael Yusko and Ron Hudo were driving south on Woodward Avenue in Highland Park when they were flagged down by a young woman in a graduation gown. The woman got into the car and suggested that they drive down the closest side street. Yusko then parked and got out of the car while Hudo remained inside with the woman.
As Yusko was standing next to the car, he noticed two men walk by. A couple minutes later, they walked by again. This time they approached Yusko and asked him for a light. Yusko stated that he didn’t have one and started moving away from the car. One of the men told Yusko not to move and then demanded his money.
Meanwhile, the defendant had approached the car and asked Hudo for a light. After using Hudo’s lighter, defendant returned it and Hudo turned to replace it in his pocket. While his head was turned, Hudo heard a pop and felt something hit the side of his head. Hudo testified that he slumped over on the seat and lost consciousness. When he awoke, his money was gone.
Yusko heard two shots and saw Hudo fall to the car seat. He started to run but was quickly caught by defendant and his accomplice. The men demanded all of Yusko’s money and Yusko complied. The two men fled when a car turned down the street.
Yusko then ran toward Woodward Avenue where he stopped a police car. He got into the car and the officers drove to the area where the shooting had occurred to find that Hudo and the car were gone. As the police circled the area, Yusko spotted the men who had robbed him. The officers stopped the car and ordered the men to "freeze.” Defendant stopped but the other man ran off. The police frisked defendant and found a .22-caliber revolver with two spent cartridges.
As the officers continued their search for the other man, Yusko observed Hudo standing beside his car on Woodward Avenue. The officers took Hudo to Henry Ford Hospital where he was treated for a single gunshot wound. The shot had entered the right side of Hudo’s face about an inch below the eye.
Defendant’s version of the events differed markedly from that of Hudo and Yusko. Defendant testified that he was walking to a friend’s home when he heard a woman in a car yell, "Please don’t let them rob me.” A man was standing next to the car and defendant asked him what was happening. In spite of defendant’s warning that he had a gun, the man kept approaching him. When he heard the girl yell that the man had a gun, defendant turned and fired at the car. The man standing outside the car turned and fled while the man in the car drove away.
Defendant was charged with armed robbery and assault with intent to murder but was convicted of the lesser-included offenses of assault with intent to commit robbery and assault with intent to do great bodily harm less than murder. Both convictions arose out of the robbery and shooting of the complainant, Hudo. The first issue which defendant raises on appeal is that his convictions violate the prohibition against double jeopardy.
When a defendant’s double jeopardy claim is purely one of multiple punishment, his only interest is in not having more punishment imposed than the Legislature intended. People v Robideau, 419 Mich 458, 485; 355 NW2d 592 (1984). Accordingly, discerning legislative intent is essential to our determination of defendant’s claim. In order to ascertain legislative intent, the Supreme Court in Robideau directed our examination to two sources: (1) the type of harm which the Legislature intended to prevent and (2) the amount of punishment authorized by the Legislature. After applying these considerations to the statutes underlying defendant’s convictions, we conclude that the Legislature intended to permit multiple convictions under the two statutes based upon a single criminal transaction.
The two statutes in question are intended to prohibit violations of two distinct social norms. The elements of assault with intent to commit great bodily harm less than murder include an attempt or offer with force or violence to do corporal harm to another coupled with an intent to do great bodily harm less than murder. People v Leach, 114 Mich App 732; 319 NW2d 652 (1982), MCL 750.84; MSA 28.279. The elements of assault with intent to rob and steal being armed include: (1) an assault with force or violence; (2) an intent to rob and steal; and (3) defendant’s being armed. People v Federico, 146 Mich App 776, 790; 381 NW2d 819 (1985).
Although both crimes have an assault element, the intent element is different. Assault with intent to commit great bodily harm requires that at the time of the assault the defendant intended to commit great bodily harm less than murder. No such intent is required for the crime of assault with intent to commit robbery. Furthermore, the presence of the different intent elements indicates that the Legislature intended to prevent distinct types of harm, robbery and corporal harm. See also People v Leach, supra.
We also note that the amount of punishment under the two statutes is different. The Legislature has authorized punishment for life or any term of years for the offense of assault with intent to rob, MCL 750.89; MSA 28.284. In contrast, punishment for assault with intent to commit great bodily harm is limited to ten years. MCL 750.84; MSA 28.279. The vast disparity in punishment indicates that the Legislature intended multiple punish ments under separate statutes based upon a single criminal enterprise. We conclude that defendant’s convictions for assault with intent to commit bodily harm and assault with intent to rob and steal being armed do not violate the prohibition against double jeopardy.
Defendant next maintains that the trial court abused its discretion in finding that the prosecution exercised due diligence in attempting to produce the missing res gestae witness. Both parties agree that the young woman in the car with Hudo was a res gestae witness and that the prosecution had the duty to endorse her on the information and produce her at trial. MCL 767.40; MSA 28.980. The dispute arises over whether the prosecution exercised due diligence in attempting to locate and secure her presence. In order to resolve the question, this Court remanded the case to the trial court for the purpose of conducting a Pearson hearing. At the conclusion of the hearing, the trial court found that the prosecution had exercised due diligence. The trial court’s finding will be reversed only where an abuse of discretion is shown. People v Kim, 124 Mich App 421, 424; 335 NW2d 58 (1983).
At the hearing, the prosecution maintained that the police had attempted to get a description of the woman from the complainants and had requested that complainants examine "mug books” in hopes of finding the woman’s picture. No further efforts were made. Generally we would find that the prosecution’s failure to take additional measures to secure the presence of the witness would not constitute due diligence. However, we are at a loss as to what further reasonable actions could have been taken in this case.
The witness was not known to any of the parties and no one was even able to provide a description beyond the fact that she had been wearing a graduation gown. Moreover, while the police requested that complainants examine "mug books,” complainants refused to do so. The res gestae rule requires that the prosecution do everything reasonable to produce the witness. People v Baskin, 145 Mich App 526, 535; 378 NW2d 534 (1985). We cannot reasonably expect the police to produce an unknown, unidentified woman in a large metropolitan area. In light of the facts in this case, the trial court did not abuse its discretion in finding that the prosecution exercised due diligence.
Defendant also contends that the court’s refusal to lower his bail resulted in a denial of due process by preventing him from preparing a defense. Bond was originally set at $100,000/10 percent and then lowered to $25,000/10 percent. Defendant was unable to meet the reduced bond and filed a motion for further reduction, which was denied. Defendant argues that further reduction was necessary in order for him to search for the missing res gestae witness and thereby prepare his defense.
MCR 6.110(E), formerly GCR 1963, 790.5, lists factors which a court should consider in setting bail and requires the court to state the reasons for its decision on the record. In the instant case, the trial court denied defendant’s motion for the following reasons: (1) the nature of the offense; (2) the probability of conviction; and (3) the fact that trial was set for nineteen days from the date of the hearing. In view of these factors, we do not believe that the trial court abused its discretion in refusing to further reduce defendant’s bond.
Neither are we persuaded that the failure to reduce bond resulted in a denial of due process. As defendant has stated, fundamental fairness re quires "that a criminal defendant be offered every reasonable opportunity to present a defense.” United States v Reese, 149 US App DC 427, 430; 463 F2d 830, 833 (1972). A "reasonable opportunity” is not every opportunity and does not extend to releasing a defendant when the factors militate in favor of continued pretrial detention.
Defendant next argues that the trial court erroneously admitted the opinion testimony of a police witness. Officer Hartman testified at trial that when he first spotted the defendant and his accomplice they were standing "up against the house . . . trying to conceal themselves from the street or any vehicular traffic.” Defense counsel objected to the testimony but was overruled. The court stated that while it was conclusory, it was admissible under MRE 701.
MRE 701 provides that opinion testimony by a lay witness is admissible if it is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or a fact in issue. The admission of opinion testimony is within the trial court’s discretion. People v George Johnson, 5 Mich App 257; 146 NW2d 107 (1966). Here the opinion testimony was clearly based on the witness’s perception and involved a crucial issue, whether defendant was the victim of a crime or a culprit. We do not believe the trial court’s discretion was abused.
Defendant’s final two claims involve the sentencing. First, he argues that the sentence imposed by the court was excessive. Our review is limited to determining whether the trial court, in imposing the sentence, abused its discretion to the extent that it shocks the appellate conscience. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983).
As previously indicated, defendant was sen tenced to a prison term of from thirty-five to seventy years for the assault with intent to rob conviction. The minimum sentence range recommended by the guidelines for this offense was forty-eight to eighty-four months. The trial court indicated that the guidelines did not adequately accommodate the circumstances of the case and felt that departure was necessary. He referred to the following factors in support of departure: (1) the outrageousness of defendant’s conduct and the need to discipline the wrongdoer; (2) defendant’s demonstrated inability to reform; (3) defendant’s prior convictions; (4) the protection of society; and (5) the need to assuage the legitimate indignation of the victim and the community. These factors are more than sufficient to support the court’s deviation from the guidelines and, in light of the factors enumerated by the court, we do not find the thirty-five to seventy-year sentence shocking to our collective conscience.
Finally, defendant argues that at the sentencing the court improperly relied on allegedly inaccurate information. In referring to defendant’s prior conviction for tampering with an auto, the trial court indicated that the conviction would have supported a much graver offense. The court described the circumstances as follows:
The description of that offense would have demonstrated that he could have been convicted of armed robbery. It also involved the use of a weapon.
The defendant, in fact, having taken the Complainant captive, ordering him to drive to a designated place, and then defendant drove off with the motor vehicle. That crime was also committed in the company of others.
However, the presentence report also contained defendant’s version of the offense, which conflicted with the account relied upon by the court.
Defendant did not challenge the accuracy of the information at the sentencing but first raised the issue at the hearing on remand. Although the court indicated that the other factors it had articulated were more than adequate to support defendant’s sentence, it concluded that a further hearing was necessary to determine the facts underlying defendant’s prior conviction. An order to that effect was subsequently entered; however, no additional hearing was held. Because the lower court has indicated the need for a further hearing, we remand this case in order for the court to determine whether it relied on the disputed information in sentencing defendant and, if so, to either make a determination as to its accuracy or to resentence the defendant without taking the disputed information into consideration.
Affirmed but remanded in part. We retain no further jurisdiction.
People v Pearson, 404 Mich 698; 273 NW2d 856 (1979). | [
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Per Curiam.
The issues of this case concern a mortgage given by defendant to plaintiff. Defendant appeals as of right the trial court’s judgment in plaintiff’s favor and its grant of plaintiff’s motion for prefiling interest. Plaintiff appeals as of right the trial court’s decision regarding a commitment fee that was paid by plaintiff to defendant and Mellon Financial Services. The appeals were consolidated. We affirm. In a prior proceeding, this Court reversed the trial court’s grant of summary disposition for plaintiff because the trial court erroneously determined that there was no dispute of fact regarding the interest rate involved in the mortgage. SSC Associates Limited Partnership v General Retirement System of the City of Detroit, 192 Mich App 360; 480 NW2d 275 (1991).
In December 1984, plaintiff executed a mortgage note for $5,500,000 payable to defendant. In October 1986, plaintiff prepaid the note in the amount of $6,007,910; the interest was calculated by defendant. Plaintiff demanded a partial refund on the basis that defendant miscalculated the amount of interest due. This action followed after defendant refused to issue a refund.
With regard to interest, the note provided:
Minimum Interest Return. Notwithstanding anything to the contrary contained in this Note, the total amount of interest to be paid by Maker to Payee shall not be less than an amount sufficient to pay to Payee an internal rate of return of fourteen and one half (14V6%) percent per annum, as calculated by Payee, on the Principal Balance.
Plaintiff contended that the interest should be computed to yield an annual rate of 14.5 percent. Defendant instead treated the internal rate of return as an interest rate and compounded it. The resulting interest as calculated by defendant was 15.5 percent. Plaintiffs expert concluded that the calculation used by defendant to determine the interest was incorrect and not according to industry standards. This witness stated that, as used in the industry, the phrase "as calculated by Payee” means that a ministerial act is performed, meaning that certain rules are followed to calculate interest. Defendant’s expert testified that there is more than one way to calculate the internal rate of return.
The trial court found that plaintiffs expert was more credible than defendant’s and that defendant, although it was empowered to calculate the interest due, failed to follow normal accounting procedures. Defendant argues that the trial court erred in concluding that the internal rate of return provision was ambiguous and in considering evidence outside the mortgage note to interpret that provision.
Where contractual language is clear, its construction is a question of law, G & A Inc v Nahra, 204 Mich App 329, 330; 514 NW2d 255 (1994), and therefore is reviewed de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). If there is a dispute, the parties’ intent must be ascertained and the agreement enforced according to that intent. Id. Contractual language is construed according to its ordinary and plain meaning, and technical and constrained constructions are to be avoided. G & A at 330-331. However, where the contract contains technical or trade terms, parol evidence to define and explain the meaning of those terms or phrases is permissible. Moraine Products, Inc v Parke, Davis & Co, 43 Mich App 210, 213; 203 NW2d 917 (1972).
It was proper for the trial court to accept extrinsic evidence in the form of expert witness testimony. "Internal rate of return” is a technical term and explanation of that term through parol evidence is permissible. Moreover, we defer to the trial. court’s credibility determination regarding the expert witnesses. Stanton v Dachille, 186 Mich App 247, 255; 463 NW2d 479 (1990). The trial court’s factual findings are reviewed to determine whether they were clearly erroneous. MCR 2.613(C). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. Ypsilanti Twp v General Motors Corp, 201 Mich App 128, 133; 506 NW2d 556 (1993). The trial court did not err in determining that defendant utilized an unreasonable method for calculating the internal rate of return.
Plaintiff challenges the trial court’s decision treating the commitment fee to defendant as "a non-refundable; [sic] fully earned payment for its due diligence, investigation and legal fees.” The parties’ commitment letter provided in part:
A commitment fee of llA% of the Loan amount, $68,750, will be paid to Mellon for the account of Lender upon Borrower’s acceptance of the terms of this letter and, subject to the paragraph hereof entitled "Loan Amount,” shall be deemed a fully earned non-refundable commitment fee.
While there was evidence that under generally accepted accounting principles commitment fees are part of the yield to the lender, there was nothing in the parties’ agreement that provided that it would conform to general practices. Defendant’s expert testified that the commitment fee was earned in full when the commitment was issued. Again, the trial court made a credibility determination when it chose to accept this testimony, and that determination will not be disturbed by this Court. Moreover, the provision clearly states that the commitment fee was nonrefundable. The trial court did not err in ruling that plaintiff did not have a right to any proceeds of the commitment fee.
Finally, defendant argues that the trial court erred in granting plaintiff’s motion for prefiling interest. The common-law doctrine of awarding interest as an element of damages has been long recognized. Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 499; 475 NW2d 704 (1991). "The doctrine recognizes that money has a 'use value’ and interest is a legitimate element of damages used to compensate the prevailing party for the lost use of its funds.” Id. Where necessary to fully compensate the prevailing party, interest as an element of damages is appropriate. Id. Here, for nearly a year before plaintiff filed its complaint, defendant held money that was rightfully plaintiffs. Plaintiff lost the use of its money during that time. Awarding interest to plaintiff as an élement of damages comports with the common-law doctrine. The trial court did not err in awarding interest to plaintiff.
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N. J. Kaufman, J.
This case presents a choice of law between Michigan, under whose statutes defendant is automatically liable, and Texas, under whose law defendant’s liability would be precluded.
Plaintiffs decedent, Brian Vogh, was employed by defendant Jack Martin & Company, an accounting firm incorporated in Michigan. In the summer of 1979, Martin sent Brian Vogh, defendant Alan Vida, and a third employee to Houston, Texas, to perform an audit. Brian allegedly accepted another job in Texas, and his last day of work for Martin was July 31, 1980. That evening, Brian Vogh, Alan Vida, and two others met at a lounge. Brian Vogh left around 2 a.m. with Vida, who was driving a car rented from Acceptance, Inc., allegedly a Texas corporation and a licensee of defendant-appellee American International. The car crashed on the highway, and Brian Vogh died shortly thereafter.
Plaintiff, Brian’s father and administrator of Brian’s estate, filed this action against Alan Vida, the car’s driver, Jack Martin, Brian’s employer, and American International, alleged owner of the car, in Wayne County Circuit Court on December 12, 1980. The count against American International was predicated on MCL 257.401; MSA 9.2101, the Michigan owner liability statute.
American International moved for accelerated judgment, alleging lack of sufficient contacts for personal jurisdiction. The motion was denied, and the decision was not appealed. On April 15, 1983, American International moved for summary judgment, pursuant to GCR 1963, 117.2(1), claiming that decedent was a Texas resident, American International was a Delaware corporation with its principal place of business in Texas, the accident occurred in Texas, and that the Michigan statute therefore could not apply. From the trial court’s grant of defendant’s motion for summary judgment dismissing American International from the suit, plaintiff appeals.
The Michigan owner liability statute holds owners of motor vehicles strictly liable for the negligent operation of the owner’s motor vehicle by another. Texas has no such owner liability statute and generally precludes a bailor’s liability for the negligence of his bailee, absent a showing of negligent entrustment. Rollins Leasing Corp v Barkley, 531 SW2d 603 (Tex, 1975); Arias v Aguilar, 515 SW2d 313 (Tex Civ App, 1974). Thus, unless Michigan law applies, defendant American International is absolved of liability.
Whether Michigan law applies to an automobile accident which occurred in Texas depends on application of Michigan choice of law rules. In Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969), the Supreme Court reaffirmed Michigan’s adherence to the traditional rule of lex loci delicti, by which the substantive law of the juris diction in which the injury occurs governs, regardless of the connections the parties and the incident may have with another jurisdiction. However, the Supreme Court recently reconsidered that decision and in Sexton v Ryder Truck Rental, Inc, and Storie v Southfield Leasing, Inc, 413 Mich 406; 320 NW2d 843 (1982), a majority of the Court voted to apply the rule of lex fori rather than the rule of lex loci delicti in certain personal injury and property damage actions brought in Michigan.
In one of two opinions reaching this result, Justice Williams ruled:
"Finding that the rationale behind the doctrine of the universality and conformity of lex loci delicti is no longer tenable and recognizing that there seems to be good reason and precedent in Michigan for the forum state to apply its own law, we hold that where Michigan residents or corporations doing business in Michigan are involved in accidents in another state and where they appear as plaintiifs and defendants in Michigan courts in a tort action, the courts will apply the lex fori, not the lex loci delicti.” Sexton, supra, p 439.
Justice Williams further determined that application of the law of the forum to cases where Michigan residents are involved in an out-of-state accident would not be extraterritorial application of Michigan law because the owners’ liability statute is predicated on the relationship between the owner and the operator. In both Sexton and Storie, all parties, including the decedents, were Michigan residents, and the employer leased the vehicle in Michigan in each case. Thus, "the owner-operator relationship took place exclusively in Michigan. * * * '[T]he chain of events which leads to damage or injury’ was forged in this state.” Sexton, supra, pp 436-437.
Justice Kavanagh’s concurring opinion took a different approach. He considered the fact that an accident occurred beyond the boundaries of the state to be of little significance where the state has control over the "status of ownership” which gives rise to the legal consequence of liability. Sexton, supra, p 440. Although he does not specify how to determine when the state has gained control over the status of ownership, Justice Levin, who concurred in both the Williams and Kavanagh opinions and wrote separately, explained that the Kavanagh position would hold that Michigan law should govern all tort actions commenced in Michigan, absent a reason for applying the law of another state. Sexton, supra, p 441.
Reviewing subsequent cases applying the views enunciated in Sexton, this Court applied the rule of lex loci delicti in Severine v Ford Aerospace & Communications Corp, 118 Mich App 769; 325 NW2d 572 (1982), because the cause of action was not a personal injury or property action, to which Sexton’s lex fori holding was expressly limited. In Smith v Pierpont, 123 Mich App 33; 333 NW2d 165 (1983), the Court, favoring the Kavanagh approach, found that Wisconsin had no superior interest in applying its law to a case involving only Michigan residents.
The Sixth Circuit, applying Michigan conflict of law rules in Bennett v Enstrom Helicopter Corp (On Reh), 686 F2d 406 (CA 6, 1982), cert den 459 US 1210; 103 S Ct 1202; 75 L Ed 2d 444 (1983), reaffirmed its earlier decision that the rule of lex loci delicti applied to a wrongful death suit by a New Zealand widow against a Michigan helicopter manufacturer where the accident occurred in New Zealand, the helicopter was shipped to New Zealand for sale and use there, and plaintiff and her decedent were New Zealand residents. The Court analyzed the case in terms of both the Williams and Kavanagh views in Sexton. No change was mandated by the Williams view as plaintiff was not a Michigan resident; nor did the Kavanagh approach dictate a different result, since, in light of all the connections with New Zealand, Michigan had little interest in applying its laws to the case.
In analyzing a claim for contribution based on a settlement of a personal injury claim, the Sixth Circuit again determined in General Motors Corp v National Auto Radiator Mfg Co, Ltd, 694 F2d 1050 (CA 6, 1982), that, under either the Williams or Kavanagh approach, the rule of lex loci delicti applied. In that case, a Canadian employee was injured by a machine sold to his employer by General Motors, a Delaware corporation with its principal place of business in Michigan. Since defendants were Canadian corporations and there was no evidence of their doing business in Michigan, the Williams approach was inappropriate. And, utilizing the Kavanagh approach, the Court deemed Ontario’s interest in the employer-employee relationship involved in that case to be as strong as Michigan’s interest in its motor vehicle owner-operator relationship had been in Sexton, so that Ontario and not Michigan law should apply.
In sum, where all parties were Michigan residents, the Court has applied Michigan Law. Smith v Peirpont. In such a case, the Williams and Kavanagh views coalesce: Michigan has a very strong interest in applying its law to a case concerning only its residents. Where either plaintiff, Bennett v Enstrom, supra, or defendant, General Motors v National Auto, supra, is not a Michigan resident nor doing business in Michigan, courts have compared the interests of each jurisdiction in having its law govern the case.
In attempting to apply these principles to the instant case, we find we cannot answer the question of which law governs without more facts. Plaintiff is unquestionably a Michigan resident, but whether decedent was a resident, whether defendant does business in Michigan, and the circumstances surrounding ownership and leasing of the vehicle are disputed in the pleadings.
Review of a grant of summary judgment under GCR 1963, 117.2(1) tests the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974). The motion should be granted only if the alleged claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Jones v Schaeffer, 122 Mich App 301, 304; 332 NW2d 423 (1982).
In this case, certain factual developments could justify plaintiff’s right to recover from defendant. For example, if defendant does business in Michigan, the Williams view would probably recommend application of Michigan law. It would not be a foregone conclusion, however, since it is not clear where the transaction took place. Justice Williams relied on the fact that the owner-operator relationship arose in Michigan to hold that applying the rule of lex fori would not be an extraterritorial application of the Michigan owner liability statute.
Justice Kavanagh, whose view was based on the state’s control over the "status of ownership”, presumably would also require something linking vehicle ownership to Michigan before applying Michigan law to the case. We further presume that an out-of-state corporation doing business in Michigan, whose Texas licensee owns a Texas vehicle, would not satisfy this threshold requirement for application of Michigan law. No interest on behalf of the State of Texas has been advanced. Assuming the trial court finds that Michigan has gained control over the status of ownership, it must then balance the interest of each state in applying its law to the case, following the Kavanagh approach.
The trial court may well conclude after making further findings that Michigan law should not govern this case. But to dismiss defendant on a motion for summary judgment was error, and that order is reversed.
Remanded for further proceedings consistent with this opinion. | [
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Pee Cueiam.
On August 19, 1982, the trial court issued a declaratory judgment holding each party 50% liable for medical expenses in the present case. Both parties appeal as of right.
On November 3, 1979, Joseph, Madeline, and Marie White were injured in a car accident. At the time, Joseph White had no-fault insurance from plaintiff. This policy provides:
"This insurance does not apply to the extent that any amounts are paid or payable for allowable expenses to or on behalf of such named insured or relative under the provisions of any other insurance, service benefit or reimbursement plan providing similar direct benefits, without regard to fault, for bodily injury sustained as a result of the operation, maintenance or use, including the loading or unloading of a motor vehicle.”
This clause is allowed by MCL 500.3109a; MSA 24.13109(1):
"An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household.”
Because Joseph White elected the coordination-of-benefits provision included in his no-fault policy with plaintiff, he was charged a reduced premium.
At the same time, Joseph White also had health coverage under a group subscriber contract with defendant, a federally qualified and state licensed health maintenance organization (HMO). This contract has the following provision:
"If a person is eligible for medical or dental benefits under any plan of medical coverage or under any other type of insurance, including automobile insurance, the benefits provided by GHP may be reduced (or GHP may collect from the members amounts received by him) so that during the calendar year up to, but not more than, 100% of the personQs medical and dental expenses (at least a portion of which is covered under one or more such plans) will be paid by all such plans.”
The applicable coordination-of-benefits provision is 42 USC 300e(b)(l):
"The requirements of this paragraph respecting the basic health services payment shall not apply to the provision of basic health services to a member for an illness or injury for which the member is entitled to benefits under a workmen’s compensation law or an insurance policy but only to the extent such benefits apply to such services. For the provision of such services for an illness or injury for which a member is entitled to benefits under such a law, the health maintenance organization may, if authorized by such law, charge or authorize the provider of such services to charge, in accordance with the charges allowed under such law, the insurance carrier, employer, or other entity which under such law is to pay for the provision of such services or, to the extent that such member has been paid under such law for such services, such member. For the provision of such services for an illness or injury for which a member is entitled to benefits under an insurance policy, a health maintenance organization may charge or authorize the provider of such services to charge the insurance carrier under such policy or, to the extent that such member has been paid under such policy for such services, such member.”
42 CFR 110.105(d)(2) provides:
"For the provision of services for an illness or injury for which a member is entitled to benefits under an insurance policy, an HMO may charge or authorize the provider of the services to charge: (i) The insurance carrier under the policy, or (ii) the member, to the extent that the member has been paid under the policy for the services.”
The basic issue, as argued by the parties, is when both the no-fault policy and the HMO policy contain secondary or excess clauses, who must pay after an accident?
Defendant first argues that it should not be forced to pay because it does not provide "health and accident coverage” as covered by MCL 500.3109a; MSA 24.13109(1). To a certain extent, HMOs do have a unique character. Rather than providing health insurance and paying for the bills after the insured has been treated by a doctor, an HMO is a prepaid plan where the participant pays before hand for the services themselves. See Chafetz, The Federally Qualified Health Maintenance Organization: An Analysis of Federal Legislation Agency Action, 16 New Eng L Rev 689 (1981). Under traditional definitions, a health maintenance organization does not sell insurance. New Mexico Life Ins Guarantee Ass’n v Moore, 93 NM 47; 596 P2d 260 (1979).
But MCL 500.3109a; MSA 24.13109(1) does not refer to "insurance” but to "health and accident coverage”. Not only have medical and disability benefits from the Army and the Veteran’s Administration been included within this statute, Bagley v State Farm Mutual Automobile Ins Co, 101 Mich App 733; 300 NW2d 322 (1980), but Medicare payments have also been included. LeBlanc v State Farm Mutual Automobile Ins Co, 410 Mich 173; 301 NW2d 775 (1981). The term used, "coverage”, is a broad term. Nyquist v Aetna Ins Co, 84 Mich App 589; 269 NW2d 687 (1978), aff'd 404 Mich 817; 280 NW2d 792 (1979). Accordingly, we hold that the services offered by defendant are "health and accident coverage” as defined by MCL 500.3109a; MSA 24.13109(1).
Although plaintiffs excess liability clause may not be easy for a layman to understand, once deciphered, it clearly states that the insurer has only secondary liability. On the other hand, defendant’s excess liability clause is not so clear. Although it clearly tells the participant that he will not receive double recovery, it does not so clearly state that the participant must first look to the other benefit provider. First, it only states that benefits provided by defendant "may be reduced”. Second, whether a claimant must merely qualify for, or actually receive, other benefits for the provision to operate is unclear. In Griswold v Union Labor Life Ins Co, 186 Conn 507; 442 A2d 920, 922 (1982), the group health policy insurer had the following clause in its policy:
"1. Effective January 1, 1975, benefits otherwise payable under the Group Policy for Allowable Expense incurred during a Claims Determination Period shall be reduced to the extent necessary so that the sum of such reduced benefits under all Plans shall not exceed the total of such Allowable Expenses. * * *
"2. Definitions: a. 'Plan’ refers to any plan providing benefits or services for or by reason of Allowable Expenses, which benefits or services are provided by * * * (iv) any coverage under governmental programs, and any coverage required or provided by any statute, and (v), any group or individual automobile 'No-Fault’ insurance policy.”
The Connecticut Supreme Court found this clause ambiguous:
"Upon reading the anti-duplication clause as it has been written by the authors of the contract, we cannot say with any degree of certainty whether it was intended to exclude not only monies or benefits actually received but also those capable of being received under any coverage required or provided by any statute or no-fault insurance policy. As we have already noted, where the terms are ambiguous and susceptible to more than one interpretation, that which is more favorable to the insured should be adopted. Moreover, 'this rule of construction favorable to the insured extends to exclusion clauses. * * *.’ * * * Therefore, the interpretation which sustains the claim must be adopted.” 442 A2d 923-924.
Ambiguities in an insurance contract are liberally construed in the insured’s favor. Herring v Golden State Mutual Life Ins Co, 114 Mich App 148; 318 NW2d 641 (1982); Interstate Fire & Casualty Co v Hartford Fire Ins Co, 548 F Supp 1185, 1187 (ED Mich, 1982). In fact, "[insurance policies must be construed in accord with the ordinary and popular sense of the language used therein. * * * To be given full effect, an insurer has a duty to clearly express the limitations in its policy. * * * A technical construction of policy language which would defeat a reasonable expectation of coverage is not favored.” State Farm Mutual Automobile Ins Co v Ruuska, 90 Mich App 767, 777-778; 282 NW2d 472 (1979), aff’d 412 Mich 321; 314 NW2d 184 (1982).
Because plaintiffs "excess liability” clause clearly states that it provides only secondary coverage while defendant’s "excess liability” clause does not so clearly state, we hold that defendant is primarily liable in this case. In fact, this result is precisely what Joseph White expected. In his August 26, 1981, affidavit, he stated:
"I believed and fully expected that the Group Health Plan of Southeast Michigan would provide coverage for all necessary medical expenses incurred by me as a result of sickness or injury to myself or my family, even if such injuries arose out of an automobile accident.
"Although I was aware of a coordination of benefits clause as a result of my inquiries to be provided with a copy of the contract I was told by Group Health Plan that this clause simply meant that I could not collect more than 100% payment for any medical expenses.
"I was aware that the automobile insurance policy I had purchased * * * contained a coordination of benefits clause under which United States Fidelity and Guaranty Company would be liable for payment of medical expenses only to the extent that such expenses were in excess of the medical expenses provided under any individual or group health insurance or plan and I was aware that I had received a reduction in my premium rates from United States Fidelity & Guaranty Company as a result of my choosing to have a coordination of medical benefits under the * * * policy rather than having full coverage for medical expenses * * *.
"I obtained the coordination of benefits coverage or excess medical coverage under the United States Fidelity and Guaranty policy under the belief and expectation that my family and I would have full coverage from the Group Health Plan of Southeast Michigan for any medical expenses arising out of any injury or illness, including injury incurred in an automobile accident.”
Affirmed in part and reversed in part.
Although we realize that HMOs are not (traditionally defined) insurance companies, we believe that the same contract construction rules apply. | [
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Michael J. Kelly, P.J.
On September 30, 1993, defendant pleaded guilty of conspiring to utter and publish, MCL 750.249; MSA 28.446, MCL 750.157a; MSA 28.354(1), and of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. In exchange, the prosecutor agreed to dismiss three counts of uttering and publishing and a count of being an habitual offender, fourth offense. There was also an agreement to sentence defendant to a five-year minimum prison sentence and to hold defendant "responsible for restitution as set by the Court.” On October 26, 1993, the trial court sentenced defendant to a prison term of five to twenty-one years and held defendant liable for $175,000 restitution. Defendant appeals as of right. We vacate the order of restitution and remand.
Defendant argues that the trial court failed to determine the proper amount of restitution in light of the financial resources and earning ability of defendant and the financial needs of defendant and his family. Defendant charges that this omission was in derogation of MCL 780.767(1); MSA 28.1287(767X1), which provides:_
The court, in determining whether to order restitution under [MCL 780.766; MSA 28.1287(766)] and the amount of that restitution, shall consider the amount of the loss sustained by any victim as a result of the oifense, the financial resources and earning ability of the defendant, the financial needs of the defendant and the defendant’s dependents, and such other factors as the court considers appropriate.
The trial court’s only comments with respect to restitution in this case were as follows:
Further, as a condition of parole, you are responsible for restitution in the approximate amount of $175,000. That may have to be paid jointly and severally with other co-defendants, but I think for the purposes of this sentence we can go with the approximate figure.
The figure of $175,000 came from defendant’s presentence investigation report (psir), which the trial court indicated it had read. At sentencing, defense counsel’s comments regarding the psir were as follows:
With regard to the text of the — or the contents of the report, Mr. Grant would state, as he has all along, that he was not a main player in this matter as the report makes him out to be. Mr. Grant maintains this. He was a ride for which Facilitated [sic] the cashing of several checks, but not merely the amount alleged by the police.
Also, that there were no — there was no evidence of a $175,000 worth of cashed checks. The case against Mr. Grant just simply did not contain that type of evidence.
There were three charges made against him, and those were specific instances where he drove a specific woman to the bank to cash a specific check. And Mr. Grant would like the Court to know that those were the instances that he was involved in and only those instances. He was not the brains, as it were, behind this scheme, but simply a ride to the specific bank and/or store where these three checks were cashed.
The only references in the psir to the propriety of ordering restitution were a statement that $175,000 in losses had been "verified,” a recommendation to impose restitution in this amount, and a comment that it appeared "highly unlikely” that much of this amount would be collected.
Defense counsel’s comments were insufficient to require the trial court to conduct an evidentiary hearing. In People v Music, 428 Mich 356; 408 NW2d 795 (1987), the Supreme Court addressed the failure to the trial court to hold a hearing regarding the defendant’s ability to pay restitution and costs under MCL 771.3(5)(a); MSA 28.1133(5) (a), which applies to probationers. The Court noted that this statute
does not expressly state that a trial court must conduct a hearing to determine whether a defendant has the ability to pay costs. In the absence of a clear statement from the Legislature, the statute is to be given a reasonable interpretation. . . .
... [A] defendant’s ability to pay restitution and costs need be determined only when a defendant asserts an inability to make such payments. Likewise, a defendant who does not timely challenge the amount of costs waives the right on appeal to challenge an order for costs that appears on its face to be a reasonable approximation of the costs permitted by MCL 771.3(4); MSA 28.1133(4). [428 Mich 361-363.]
Unlike People v Avignone, 198 Mich App 419; 499 NW2d 376 (1993), cited by defendant, defense counsel’s comments did not implicate the need for a hearing. In Avignone, the defendants clearly indicated that they were unable to pay the amounts of restitution recommended in their psirs. One defendant sought to have any restitution order stayed pending the resolution of related civil litigation, and the other essentially asked that the litigation be considered in determining the appropriate amount. Id. at 423. Here, defendant never explicitly asserted that he was unable to pay restitution.
Further, with respect to defendant’s challenge to the accuracy of the $175,000 figure in the psir, defendant did not offer evidence in support of any other figure or request a hearing regarding the issue. Under these circumstances, the trial court was not required to conduct a hearing for the purpose of fulfilling the mandates of MCL 780.767(1); MSA 28.1287(767X1). Cf. People v Lawrence, 206 Mich App 378, 380; 522 NW2d 654 (1994).
Despite the fact that no hearing was required, defendant is correct in asserting that the trial court’s determination of restitution fell short of the statutory requirements. At the very least, the court was required to consider the factors enumerated in MCL 780.767(1); MSA 28.1287(767X1). Such consideration was mandated by statute despite the ambiguity of defendant’s objections. See Avignone, supra at 422, emphasizing the word "shall” in MCL 780.767(1); MSA 28.1287(767X1). Here, the trial court apparently gave no consideration to defendant’s ability to pay, the financial needs of defendant and his family, or any other nonenumerated but relevant factors, such as defendant’s claimed limited role in the offense. Although the trial court read and was entitled to rely on the psir, the psir provided only conclusory input regarding these factors. While we do not presume to tell the trial court how to exercise its discretion in considering these factors, we cannot ignore the plain meaning of the statutory language mandating such consideration. See Avignone, supra at 424-425 (vacating a restitution order where the trial court had failed to consider the statutorily enumerated factors and urging the trial court to articulate the evidence in support of its order of restitution on remand).
Our holding effectively limits the applicability of the Supreme Court’s opinion in Music, supra, to the statute at issue in that case. This Court’s opinion in People v Music, 157 Mich App 375; 403 NW2d 143 (1987), quoted extensively with approval in the Supreme Court opinion, stated that the trial court did not err in failing to hold a hearing or to make an express determination regarding the defendant’s ability to pay under MCL 771.3(5)(a); MSA 28.1133(5)(a). 157 Mich App 379-380. This holding was based on the language of that statute, which, the Court noted, first provided for the imposition of restitution and costs and then, as an afterthought, provided for the consideration of a probationer’s ability to pay in conjunction with enforcement of the order of restitution and costs. Id._
In contrast, the statute here does not make a distinction between imposition and payment of restitution. The factors to be considered by the trial court under MCL 780.767(1); MSA 28.1287(767)(1) are pertinent to the initial decisions whether to impose restitution at all and, if so, how much. The situation is analogous to the distinction between fashioning a defendant’s sentence of imprisonment and determining whether to enforce the maximum prison term. In the former case, the trial court is required to consider a number of . relevant factors and to articulate its reasons for the sentence imposed. See People v Harris, 190 Mich App 652, 668-669; 476 NW2d 767 (1991). We therefore remand for reconsideration of the order of restitution.
The order of restitution is vacated and the matter is remanded for reconsideration by the trial court. We retain jurisdiction._
Defendant also relies on MCL 780.766(13); MSA 28.1287(766)03), which reiterates the requirement that a trial court consider a defendant’s ability to pay in determining the amount of restitution. How ever, this subsection was first added to the restitution statute with the enactment of 1993 PA 341. It took effect May 1, 1994, well after the date of defendant’s sentencing.
MCL 771.3(5)(a); MSA 28.1133(5)(a), as it existed at the time of Music, provided:
The court shall not require a probationer to pay restitution or costs unless the probationer is or will be able to pay them during the term of probation. In determining the amount and method of payment of restitution and costs, the court shall take into account the financial resources of the probationer and the nature of the burden that payment of restitution or costs will impose, with due regard to his or her other obligations.
Our holding that a full hearing was not necessary should not be interpreted as a holding that a hearing is unnecessary on remand. If the trial court, upon considering the proper factors for imposing restitution, determines that a hearing is needed because of a lack of evidence or because of a challenge to the evidence and request for a hearing by defendant, it shall hold such a hearing. | [
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Per Curiam.
Defendant was convicted after a jury trial of two counts of first-degree murder, MCL 750.316; MSA 28.548. The victims, Leon and Betty Coward, were the parents of defendant’s deceased wife. The Cowards had won a custody dispute with defendant and were the guardians of defendant’s two small children. Defendant was sentenced to life imprisonment on each count and presently appeals as of right.
Defendant argues on appeal that the trial court erred in admitting a copy of a circuit court order terminating defendant’s rights of visitation with his children. We find no error. The evidence was relevant on the issue of defendant’s motive for the killings and was admissible under MRE 404(b). Defendant also argues that the order violates his right to confrontation and constitutes impermissible hearsay. We find People v Patton, 411 Mich 490; 308 NW2d 163 (1981), reh den 411 Mich 1158 (1981), relied upon by defendant, to be distinguishable. In Patton, the Supreme Court found an affidavit prepared by defendant’s murdered wife preparatory to issuance of a preliminary injunction in their divorce proceeding to be hearsay and erroneously admitted at defendant’s trial. The affidavit alleged that defendant drank to excess, beat the affiant, and had a violent temper. The Supreme Court also found defendant’s right to confrontation had been violated. Here, unlike the affidavit in Patton, the evidence offered was a circuit court order. MCL 600.2106; MSA 27A.2106 expressly allows the introduction of a copy of an order of any court of record in this state as prima facie evidence of all facts recited therein. The order contains no impermissible hearsay statements. This Court has held that the use of certified court records in accordance with MCL 600.2106; MSA 27A.2106 does not violate a defendant’s right of confrontation. People v Green, 112 Mich App 655; 317 NW2d 212 (1981).
Defendant next argues that the trial court erred by disallowing testimony as to specific instances of defendant’s good conduct pursuant to MRE 405(b). Although defendant’s former brother-in-law testified generally as to defendant’s good character, the prosecutor’s objection to specific examples of good conduct was sustained.
The trial judge did not err in excluding the proffered testimony. MRE 405(b) allows proof of specific instances of conduct to show character only where character "is an essential element of a charge, claim, or defense”. Defendant here was charged with two counts of first-degree murder. His defense was that he was not present and had not committed the crimes. Neither the charge nor the defense employed make character an essential element. It is only in the narrow situation where character is an element of the offense that specific acts of conduct are admissible to show character under MRE 405(b). The present case is not within that narrow class.
Defendant also contends that the trial judge abused his discretion by asking the jury to reconsider its request to rehear testimony. During deliberations, the jury requested that the testimony of defendant be read back to them. The trial judge pointed out that defendant’s testimony had consumed in excess of five hours and asked the jury to consider whether there was a particular portion of the testimony that it wished to rehear and if it could recall, "you might specify the topic, the area, the type of questioning that was involved, was it on direct, recross, redirect, or whatever, if you can recall”. The judge concluded:
"You’re in charge. And we are at your mercy, and we’re here to serve you. So if there’s something we can do to assist you, we’re certainly ready, willing, and able to do that. But you have to understand the difficulties that are involved.”
The reading and extent of the reading of trial testimony after a jury request is within the discretion of the trial judge. Although a trial judge may not simply refuse such a request, he "may ask the jury to resume deliberations with the knowledge that the request would be reviewed again if needed”. People v Harvey, 121 Mich App 681, 684; 329 NW2d 456 (1982). In the instant case, the trial judge properly exercised his discretion by asking the jury to try to narrow down its request. Because the trial court did not foreclose rereading, no abuse of discretion occurred.
We also reject defendant’s final argument that the statements in the affidavit for the search warrants were intentionally false or given with reckless disregard for the truth so as to require suppression of the recovered evidence. The standard for determining whether erroneous information in an affidavit for a search warrant should be excluded from a determination of whether probable cause existed to issue the warrant was set forth in Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978). The test looks to whether "defendant can show by a preponderance of the evidence that the affiant has knowingly and intentionally or with reckless disregard for the truth inserted false material into the affidavit and that the false material is necessary to a finding of probable cause”. People v Mackey, 121 Mich App 748, 754-755; 329 NW2d 476 (1982). Here the trial judge applied the Franks test and determined that, while a false representation was made in the affidavit for the search warrant, such error was negligent and there was no wilful or reckless misrepresentation of the material facts. The trial judge also found that even excluding the erroneous information there was still sufficient probable cause indicated in the affidavit to justify the issuance of the search warrants. Our review of the record reveals no error in the trial court’s ruling. The erroneous statements do not appear to have been wilfully or intentionally made and, even if they are excluded from the affidavit, sufficient probable cause existed for issuance of the search warrants.
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Doctoroff, C.J.
The trial court ordered defendant-father to reimburse the Department of Social Services for the plaintiff-mother’s hospital confinement expenses during the birth of their child. Defendant argues that the trial court had no authority to order this relief and that the order was contrary to established law. We affirm.
Plaintiff gave birth on December 7, 1990. The costs of plaintiff’s hospital stay were paid by the Medicaid program. Although plaintiff and defendant were not married at the time, defendant acknowledged his paternity and expressed a willingness to support the child. Several weeks after the birth of the baby, both plaintiff and defendant met with an investigator from the prosecutor’s office working on a referral from the Department of Social Services. The investigator testified that he discussed a declaration of paternity and support payments with plaintiff and defendant. He brought a standard support agreement, which both plaintiff and defendant signed. Defendant agreed to pay $15 a month in support payments. The agreement also provided that defendant would pay an undetermined amount of confinement costs. Defendant acknowledges signing the agreement for paternity and support, but he claims that he was never aware that he would be required to pay the medical expenses for plaintiffs hospital confinement. Two months after signing the support order, defendant married plaintiff.
The friend of the court, on behalf of the Depart-. ment of Social Services, filed a petition for modification of judgment to specify the amount of confinement costs and to establish a payment plan. Under the terms of the support agreement, the Department of Social Services was plaintiffs assignee. Defendant filed a motion to dismiss on the ground that the Department of Social Services had no authority to collect confinement expenses. The trial court ordered defendant to pay the confinement expenses.
Defendant argues that the trial court exceeded its jurisdiction when it ordered him to pay plaintiffs confinement costs pursuant to the Family Support Act, MCL 552.451 et seq.; MSA 25.222(1) et seq. The Family Support Act allows a custodial parent to bring an action for support against a noncustodial parent. MCL 552.451a; MSA 25.222(la). Support is defined as the payment of medical, dental, and.other health care, child care, and educational expenses. MCL 552.452(2); MSA 25.222(2)(2).
Defendant maintains that the statutory definition of support does not include a mother’s confinement expenses. We disagree.
Normally, § lb of the Family Support Act allows the Department of Social Services to recover confinement expenses if either the custodial parent or the minor child receives public assistance. MCL 552.451b; MSA 25.222(lb). Because the original petition was filed by plaintiff and not the Department of Social Services, § lb does not apply. Even if the case is reviewed as of the time when the friend of the court attempted to set up a payment plan and establish confinement expenses, § lb still does not apply because neither the custodial parent nor the child was on public assistance at that time.
Although the Family Support Act does not expressly indicate that confinement expenses are included in the definition of support, the Paternity Act states that support payments by the father include confinement costs. MCL 722.717(2); MSA 25.497(2). When two statutory provisions have a common purpose, the terms of the provisions should be read in pari materia. The object of the rule of in pari materia is to carry into effect the purpose of the Legislature as found in harmonious statutes on a subject. Jennings v Southwood, 446 Mich 125, 136; 521 NW2d 230 (1994). The Paternity Act has always been intended to both provide for the financial support of children and spare the public from providing that financial support. Waite v Washington, 44 Mich 388, 389; 6 NW 874 (1880). The Family Support Act also attempts to keep the public from having to support children whose parents are able to provide some financial support. MCL 552.451b; MSA 25.222(lb). Because the Family Support Act and the Paternity Act share the common purpose of encouraging parents to support their children instead of relying on public assistance, these statutes should be read in pari materia. Therefore, we hold that support, as defined in the Family Support Act, includes confinement expenses.
Defendant also argues that, pursuant to federal law, defendant may not reimburse the Department of Social Services. Federal la.w does not alter state law with regard to the right of the Department of Social Services to collect money under an assignment signed by the recipient of Medicaid benefits. Morrow v Shah, 181 Mich App 742, 751; 450 NW2d 96 (1989).
Although defendant claims that he did not read the section of the support agreement relating to confinement, he did not allege fraud, mutual mistake, or duress. Therefore, the agreement is still binding on him. Sherman v DeMaria Bldg Co, 203 Mich App 593, 599; 513 NW2d 187 (1994). We find that the trial court properly enforced the support agreement and ordered defendant to pay confinement costs.
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Per Curiam.
Respondent appeals as of right the probate court’s order terminating her parental rights in the child Charnell Irving pursuant to the following subsection of MCL 712A.19a; MSA 27.3178(598.19a):
"Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:
"(d) A parent or guardian of the child is convicted of a felony of a nature as to prove the unfitness of the parent or guardian to have future custody of the child or if the parent or guardian is imprisoned for such a period that the child will be deprived of a normal home for a period of more than 2 years.
"(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect.
"(f) The child has been in foster care in the temporary custody of the court on the basis of a neglect petition for a period of at least 2 years and upon rehearing the parents fail to establish a reasonable probability that they will be able to reestablish a proper home for the child within the following 12 months.”
Although various panels of this Court have stated that the proper standard of review in parental rights termination cases is unclear, see In the Matter of Mudge, 116 Mich App 159; 321 NW2d 878 (1982); In the Matter of Bailey, 125 Mich App 522; 336 NW2d 499 (1983), we believe that a "clearly erroneous” standard of review must be applied. MCL 600.861; MSA 27A.861 and MCL 600.863; MSA 27A.863 govern appeals from the probate court to the Court of Appeals and circuit court, respectively. MCL 600.866; MSA 27A.866 states that:
"All appeals from the probate court shall be on a written transcript of the record made in the probate court or on a record settled and agreed to by the parties and approved by the court. An appeal shall not be tried de novo.”
All three of these sections were added by 1978 PA 543, although § 861 was later amended by 1982 PA 318. We believe that the clear import of this statutory framework is to preclude a de novo standard of review of parental termination cases in this Court.
In addition, we note that Mudge, supra, the first case to recognize a lack of clarity in the standard of review in termination cases, cites Bahr v Bahr, 60 Mich App 354, 360; 230 NW2d 430, lv den 394 Mich 794 (1975), for the proposition that review may be de novo. Bahr, however, is a child custody case. De novo review has long been applied to child custody determinations, since such cases were originally heard in the chancery division of the court. See Vines v Vines, 344 Mich 222; 73 NW2d 913 (1955). The probate court, however, is a statutory court, In re Cook Estate, 366 Mich 323; 115 NW2d 98 (1962), having only those powers granted it by the Legislature. See MCL 600.841; MSA 27A.841. We accordingly find no justification for the application of a de novo standard of review in parental rights termination appeals.
We find that the state sustained its burden of proving by clear and convincing evidence that respondent’s parental rights should be terminated. The child had been in the temporary custody of the court for a period of six years. Testimony from respondent’s Catholic Social Services worker and a psychologist who interviewed respondent three times over a period of years established that respondent would not be capable of providing a proper home for the child within the following 12 months. Respondent had recently been convicted of arson in the burning of the house in which she and her other children lived. In light of the testimony presented in the entire record as to the above facts and respondent’s inability to overcome her lack of initial bonding with Charnell, we find the evidence presented by the state to be clear and convincing in favor of termination of respondent’s parental rights.
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Per Curiam.
The people appeal from the ex-pungement of defendant’s conviction for indecent liberties with a female child under 16 (formerly MCL 750.336; MSA 28.568) pursuant to MCL 780.621; MSA 28.1274(101).
The people contend that defendant’s prior conviction for being drunk and disorderly, MCL 750.167; MSA 28.364, precludes him from obtaining the relief accorded under MCL 780.621; MSA 28.1274(101). We agree.
MCL 780.621(1); MSA 28.1274(101X1) clearly requires that the offender seeking relief not be convicted of more than one offense. MCL 750.167; MSA 28.364 is a 90-day misdemeanor. At the time defendant brought his petition, he did not fulfill the statutory prerequisites. Thus, the trial court committed error requiring reversal in setting aside the indecent liberties conviction.
Reversed. | [
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Neff, J.
In this case involving allegations of a breach of fiduciary duty by an employee, plaintiffs, Central Cartage Co. (Central), CenTra, Inc., Central Transport, Inc., P.A.M. Transport, Inc. (P.A.M.), C.C. Eastern, Inc., and C.C. Southern, Inc., appeal from a judgment and order of no cause of action consistent with a jury verdict of no cause of action in favor of defendants Teriy L. and Susan A. Fewless, Susan A. Fewless doing business as SKAN Consulting (SKAN), and Total Quality, Inc. (tqi). Defendants cross appeal from the trial court’s directed verdict in favor of the plaintiffs regarding plaintiffs’ claim for $55,000 received by SKAN from a third party while Terry Fewless was an employee of Central. We affirm in part, reverse in part, and remand.
i
Central is one of several wholly owned transportation subsidiaries of CenTra. The majority of Central’s business is in the automotive industry, transporting parts from surrounding states to various automobile plants in Michigan. Because Michigan is considered an “inbound” state, one of Central’s goals is to produce business going out of Michigan so that its trucks do not travel outward empty.
Terry Fewless began working for Central in 1976, eventually becoming regional vice president of automotive sales. Fewless secured Wyeth-Ayerst Laboratories (Wyeth) as a customer for Central. Wyeth produced baby formula and other nutritionals in a plant in Mason and needed to transport its products out of state; it was therefore an important account for Central. Various United States Department of Agriculture and Food and Drug Administration regulations require that Wyeth’s infant formula stay within a certain temperature range. Because Central had only “dry vans,” rather than more costly steel-lined temperature-controlled trailers, Wyeth permitted Central to transport Wyeth freight only within a relatively small area. Central used cargo heaters on the trucks when needed in the winter months, with limited success.
In 1991, Fewless made a “single source” proposal to Wyeth on Central’s behalf, in an attempt to obtain brokerage fees. Fewless advised Central’s owner/chief executive officer, Matty Moroun, of the potential for large revenues from Wyeth if Central were to obtain temperature-controlled trucks for more lengthy trips. According to Fewless, Moroun said that he was not interested, saying “That’s not our type of business.”
In the spring of 1992, Wyeth became concerned about a potential nationwide railway strike. Representatives of Wyeth contacted Fewless for assistance in finding a temperature-controlled carrier who could handle Wyeth’s freight on long interstate trips. Fewless learned that Navajo Express, one of Central’s carriers for automotive parts, had a large fleet of temperature-controlled trailers and advised Navajo to contact Wyeth.
Navajo offered Fewless a commission for sending the Wyeth business its way, but Fewless declined, apparently recognizing that it would be inappropriate because he was an employee of Central. Wyeth continued to use Navajo after the. railway strike ended, and Fewless’ wife, Susan, set up SKAN, which received a six to seven percent commission on the Wyeth freight transported by Navajo. Fewless never advised Moroun that Susan was going to be an agent for Navajo with regard to Wyeth freight or that she was receiving commission payments from Navajo.
Realizing that there was great potential for profit in the field of temperature-controlled trucking, Fewless incorporated tqi, applied for a property broker’s license, and signed a lease for office space in anticipation of establishing his own third-party logistics company. Fewless testified that he did not actually solicit any business for tqi while he was an employee of Central, and this assertion was confirmed by representatives of both Wyeth and Navajo.
In early December 1992, when confronted with rumors that he had started another company, Fewless admitted that his wife had formed a company that was receiving revenues from Navajo. Fewless tendered a resignation letter to Moroun, in which he stated his intention to start his own logistics company and his desire to maintain a close relationship with Central. On December 7, 1992, Central terminated Fewless’ employment. Within a few months after Fewless left Central, tqi entered into written agreements with both Wyeth and Navajo.
Meanwhile, Central began losing more and more of Wyeth’s business, which virtually ceased by the end of 1993. A representative of Wyeth testified regarding several temperature-related service failures that required a quarantine of its product, as well as a marked deterioration in the cleanliness of Central’s trailers and poor driver attitudes. Wyeth instituted a new policy that required transportation in a temperature-controlled environment to prevent product freezing. Wyeth’s position was that it would have continued to use Central or P.A.M. if they had provided temperature-controlled trailers, competitive rates, and competitive service.* *
Plaintiffs filed a multiple count complaint against defendants, alleging breach of contract, a common-law obligation not to compete, intentional misrepresentation, innocent misrepresentation, silent fraud, conspiracy to commit fraud, interference with existing contractual relationships, interference with prospective business relations, interference with contractual relations, a right to an accounting, and breach of fiduciary duty. At the close of the evidence, the trial court granted defendants’ motion for a directed verdict with regard to several claims and granted plaintiffs’ motion for a directed verdict regarding their claim for $55,000 paid by Navajo to SKAN while Fewless remained employed by Central. The jury specifically found that Fewless did not breach his fiduciary duty to Central after his termination and returned a verdict of no cause of action on all remaining counts.
n
Plaintiffs first argue that the trial court erred in denying their motion for judgment notwithstanding the verdict (jnov) or a new trial. We disagree.
In reviewing the denial of a motion for jnov, this Court views the evidence and all legitimate inferences that may be drawn from the evidence in a light most favorable to the nonmoving party. Jones v Powell, 227 Mich App 662, 676; 577 NW2d 130 (1998). “If reasonable jurors could honestly have reached different conclusions, the jury verdict must stand.” Severn v Sperry Corp, 212 Mich App 406, 412; 538 NW2d 50 (1995).
A
Plaintiffs insist that because the court held defendants liable for the $55,000 in commissions paid by Navajo while Fewless was employed by Central, defendants are also hable for all commissions paid by Navajo to SKAN, and later to TQI, after Fewless was terminated by Central. Specifically, plaintiffs argue that these subsequent commission payments were a mere continuation of Fewless’ breach of his fiduciary duties. We disagree.
A fiduciary owes a duty of good faith to his principal and is not permitted to act for himself at his principal’s expense during the course of his agency. Pro duction Finishing Corp v Shields, 158 Mich App 479, 486-487; 405 NW2d 171 (1987). A corollary to this rule is that all profits made in the execution of a fiduciary’s agency belong to the principal Id. Accordingly, “[i]f an agent acquires any pecuniary advantage to himself from third parties by means of his fiduciary character, he is accountable to his employer for the profit made.” Id. at 487; see also Michigan Crown Fender Co v Welch, 211 Mich 148, 159-160; 178 NW 684 (1920).
Without question, Fewless breached his fiduciary duties to Central by failing to advise that Navajo was paying SKAN commissions for Wyeth freight. However, we disagree with plaintiffs’ assertion that, even after Fewless was terminated from his employment and had advised Central of the situation involving SKAN and Navajo, all future commissions also rightly belonged to Central ad infinitum. We find that, particularly in light of the fact that an agreement not to compete did not exist between Central and Fewless, reasonable minds could differ regarding the question whether, after Fewless was terminated and Central was armed with all relevant facts surrounding the SKAN/Navajo situation, Fewless and TQI were free to pursue these revenues. SCD Chemical Distributors, Inc v Medley, 203 Mich App 374, 382; 512 NW2d 86 (1994). Accordingly, the trial court properly denied plaintiffs’ motion for jnov.
B
Similarly, we find that reasonable minds could differ regarding the issue whether the temperature-controlled transportation brokerage company started by Fewless after his termination from Central repre sented a usurpation of a business opportunity rightly belonging to Central.
Plaintiffs insist that this question is governed by Production Finishing, supra. We find this reliance is misplaced. In Production Finishing, the defendant was the president of a steel polishing company that had long sought to purchase Ford Motor Company’s steel polishing business. Upon learning that Ford was considering selling its polishing business, the defendant notified his employer of the opportunity and made an offer to purchase on the employer’s behalf. Ford responded that it would not sell to the employer because it feared a monopoly in the area. The defendant then inquired into the possibility of purchasing the business for himself. Ford agreed, and the defendant made preparations to purchase the business without advising his employer that Ford had refused to sell to it and without stating his intention to purchase the business in his individual capacity. This Court held that the defendant breached his fiduciary duties and had diverted a business opportunity of the employer. In doing so, the Court stated that Ford’s refusal to deal with the employer did not reheve the defendant fiduciary from liability when he failed to disclose the refusal to his principal. Production Finishing, supra at 489-490.
The facts in the present case are significantly different. Fewless repeatedly asked Moroun to consider purchasing refrigerated trailers in order to obtain longer routes and more Wyeth business. Although the evidence is conflicting, reasonable minds could find that Moroun flatly rejected the business opportunity because the trailers were too expensive and because his primary freight, automobile parts, could easily damage the trailers. These facts distinguish this case from Production Finishing, supra, where the employer never wavered in its desire to obtain the business opportunity usurped by the employee. Absent an agreement not to compete, Fewless was free, upon the termination of his employment, to use his skill, experience, and general knowledge to compete against Central in both the refrigerated trucking industry and the third-party logistics business. SCD Chemical Distributors, supra at 381.
c
Plaintiff's argue that after his termination, Fewless caused Wyeth to pull its business from Central and direct it to one of tqi’s customers. Our review of the record reveals ample evidence from which the jury could find that the reasons for Central’s loss of Wyeth’s business was a decline in service and a refusal to provide Wyeth with temperature-controlled trailers. Because reasonable minds could differ with regard to this issue as well, the trial court properly denied plaintiff’s motion for jnov.
H
Plaintiffs next challenge the jury instructions given by the trial court. Specifically, plaintiffs argue that certain special instructions tendered by them should have been given, certain special instructions tendered by defendants should not have been given, and the order in which the instructions were given caused undue confusion among the jurors. We disagree.
Generally, a trial court may give an instruction not covered by the standard instructions as long as the instruction accurately states the law and is understandable, concise, conversational, and nonargumentative. Bordeaux v Celotex Corp, 203 Mich App 158, 169; 511 NW2d 899 (1993). Supplemental instructions need not be given if they would add nothing to an otherwise balanced and fair jury charge nor enhance the ability of the jury to decide the case intelligently, fairly, and impartially. Mull v Equitable Life Assurance Society, 196 Mich App 411, 422-423; 493 NW2d 447 (1992), aff’d 444 Mich 508; 510 NW2d 184 (1994). Moreover, it is error to instruct a jury with regard to a matter not sustained by the evidence or the pleadings. Murdock v Higgins, 454 Mich 46, 60; 559 NW2d 639 (1997). Jury instructions are to be reviewed in their entirety, and there is no error requiring reversal if, on balance, the theories of the parties and the applicable law were fairly and adequately presented to the jury. Mull, supra at 423.
We agree with the trial court that many of plaintiffs’ special instructions were repetitious of other instructions given to the jury. The court incorporated portions of plaintiffs’ instructions regarding the duties of a fiduciary into the charge given to the jury, thus affording plaintiffs the favorable language they desired while lessening the danger of repetition. The challenged instructions tendered by defendants regarding an employee’s duty not to compete and Fewless’ status as an employee at will were appropri ate in light of the evidence presented and the theories of the parties. Moreover, we find nothing in the order of the instructions that would have rendered them unduly confusing to the jurors.
After reviewing the jury instructions in their entirety, we conclude that the trial court presented the theories of the parties and the applicable law fairly and adequately. Accordingly, reversal is not warranted on this ground.
IV
Plaintiffs next argue that the trial court committed error requiring reversal when, after directing a verdict in favor of plaintiffs regarding the $55,000 paid by Navajo to SKAN before December 7, 1992, it advised the jury as follows:
Earlier in this case I advised you that certain matters had been resolved and were no longer for you to consider. I will now advise you that the Defendant, Susan Fewless, has been resolved out of this case and you need not consider claims that relate to Susan Fewless.
Because plaintiffs cite no authority for their position, we deem this issue abandoned. Weiss v Hodge (After Remand), 223 Mich App 620, 637; 567 NW2d 468 (1997). We note, however, that the court’s advisement was neutral and in no way prejudiced plaintiffs.
v
Plaintiffs argue that the trial court erred in granting defendants’ motion for a directed verdict with regard to count VI, which alleged a conspiracy between Terry Fewless, Susan Fewless, SKAN, and tqi to obtain and use proprietary information in an attempt to usurp plaintiffs’ corporate opportunities regarding Navajo and Wyeth. We disagree, because no evidence was presented that would support the conclusion that Susan Fewless or SKAN ever received, or conspired to obtain, proprietary information from the other plaintiffs. Because reasonable jurors could not have honestly reached different conclusions regarding this issue, the trial court’s grant of a directed verdict with regard to this count was appropriate. Alar v Mercy Memorial Hosp, 208 Mich App 518, 524; 529 NW2d 318 (1995).
VI
Defendants raise the following issues on cross appeal.
A
Defendants first challenge the trial court’s denial of their motion for offer of judgment sanctions pursuant to MCR 2.405. We agree that the trial court erred in determining that because the proposed judgment was to be paid in installments, rather than in a lump sum, it was not for a “sum certain” as contemplated by the court rule.
MCR 2.405(B) provides that, until twenty-eight days before trial, a party may serve on his opponent a written offer to stipulate the entry of a judgment. If the opponent rejects the offer and the adjusted verdict is more favorable to the offeror than the average offer, the offering party may recover actual costs from the offeree. MCR 4.205(A).
On May 16, 1995, defendants served on plaintiffs an offer to stipulate entry of judgment of $90,000, payable in three annual installments of $30,000 at eight percent interest. Plaintiffs responded that they did not believe the offer to be valid for two reasons: it was untimely, and it was invalid because the judgment was to be paid in installments. On July 20, 1995, defendants filed a second offer, this time offering to stipulate entry of judgment in the amount of $250,000, payable in five annual installments of $50,000 at six percent interest. Plaintiffs filed a counteroffer of judgment dated August 7, 1995, offering to stipulate the entry of a judgment in the amount of $550,000.
At issue here is the definition of “offer” found in MCR 2.405(A)(1):
“Offer” means a written notification to an adverse party of the offeror’s willingness to stipulate to the entry of a judgment in a sum certain, which is deemed to include all costs and interest then accrued. If a party has made more than one offer, the most recent offer controls for the purposes of this rule.
Few cases have addressed the question of what constitutes a “sum certain” for purposes of MCR 2.405. In Hessel v Hessel, 168 Mich App 390, 395; 424 NW2d 59 (1988), this Court held that, in a divorce proceeding, a proposed property settlement did not constitute a “sum certain”:
The definition of an “offer” at MCR 2.405(A)(1), quoted above, refers to the offer of a sum certain. A proposed property settlement does not offer a sum certain; it offers a division of marital property. This case is illustrative: defendant “offered” plaintiff real estate, a car, household furnishings, and certificates of deposit which would presumably vary in worth depending on when they were withdrawn. In no sense of the phrase can these items be equated with a “sum certain.” Even if the worth of the property were considered a “sum” for purposes of MCR 2.405, such worth is by no means “certain,” as this case also demonstrates. Defendant valued the property he offered plaintiff at $143,200, while the trial court’s valuation of that same property was approximately $108,000.
In a more recent case, Wilkins v Gagliardi, 219 Mich App 260, 274; 556 NW2d 171 (1996), the trial court held that a defense offer for $500 “plus costs attributable to those portions of the plaintiffs’ complaint that were not dismissed” was for a “sum certain” as required by MCR 2.405.
In Haberkorn v Chrysler Corp, 210 Mich App 354; 533 NW2d 373 (1995), this Court addressed another aspect of MCR 2.405(A) and distinguished an offer to settle and an offer of judgment. There, the defense offer, though including the amount of $500,000, merely expressed a willingness to settle, but did not express a willingness “to stipulate to the entry of a judgment in a sum certain,” as required by the court rule.
Turning to the present case, we find that defendants’ offer, which was for a specific amount ($250,000), and had a specific interest amount to be applied (six percent), constitutes a “sum certain” for purposes of MCR 2.405. Further, in contrast to the situation in Haberkorn, supra, defendants were not merely presenting an offer to settle. To the contrary, they unequivocally offered to enter into a stipulation of judgment.
Nor does the fact that the proposed judgment was to be payable in installments render it invalid for purposes of MCR 2.405. Nothing in the court rule prohibits a party from presenting an offer of judgment that is to be payable over time. Moreover, MCL 600.6201(1); MSA 27A.6201(1) provides that a judge may enter an order permitting a defendant to pay in installments any judgment previously rendered in the judge’s court. Thus, even if defendants’ offer of judgment did not so provide, defendants easily could have petitioned the trial court for permission to pay the judgment in installments.
Plaintiffs argue that there is no certainty that all the installments will ever be paid, or that assets of defendants wall be available in the case of bankruptcy proceedings. The risk of noncollection exists, however, for virtually every money judgment. Nothing in MCR 2.405 requires that the offer of judgment be “guaranteed collectible.” Further, plaintiffs remain free to pursue all legal means for the collection of an installment judgment, save garnishment. MCL 600.6245; MSA 27A.6245.
In light of the purpose of MCR 2.405, which encourages parties to seriously engage in the settlement process and avoid prolonged litigation, Freysinger v Taylor Supply Co, 197 Mich App 349, 354; 494 NW2d 870 (1992), we hold that the trial court erred in determining that the inclusion of installments rendered defendants’ offer of judgment invalid and not for a “sum certain.” Accordingly, the trial court’s order denying the motion for offer of judgment sanctions is reversed and the matter is remanded for consideration of the appropriate fees to be awarded pursuant to MCR 2.405.
B
Defendants challenge the trial court’s grant of plaintiffs’ motion for a directed verdict in the amount of $55,000, representing payments by Navajo to SKAN before Fewless’ termination from Central. We affirm the trial court’s ruling, but remand this case to the trial court for correction of its written judgment to accurately reflect the court’s judgment made on the record.
The trial court ruled that plaintiffs were entitled to the commission payments paid by Navajo to SKAN while Fewless was still employed by Central. Accordingly, the court orally granted plaintiffs’ motion for a directed verdict against all defendants except tqi, which, the court stated, was not in existence at the time. The court’s written order, however, states that the directed verdict is against all defendants.
i
Defendants argue that the court erred in granting a directed verdict against Susan Fewless and SKAN because, at that point in the trial, they were no longer parties to the lawsuit. Specifically, defendants note that, immediately before hearing plaintiffs’ motion for a directed verdict, the court had granted defendants’ motion for a directed verdict with regard to all counts involving Susan Fewless and SKAN.
We find defendants’ argument is without merit. The record reveals that some of the proofs at trial were taken slightly out of order to accommodate witnesses and avoid needless repetition. As a result, plaintiffs’ and defendants’ motions for a directed verdict were heard at the same hearing by agreement of counsel. However, it is abundantly clear that the court’s grant of a directed verdict in favor of defendants Susan Fewless and SKAN was for those claims regarding actions that occurred after December 7, 1992, when Fewless was terminated from his employment with Central. The trial court properly determined that Susan Fewless and SKAN remained parties regarding their conduct that occurred before December 7, 1992.
2
Defendants also challenge the entry of a directed verdict against Fewless and state that evidence was presented that supports the conclusion that he did not breach his fiduciary duty to Central. We disagree.
Fewless recommended that Navajo contact Wyeth regarding Wyeth’s refrigerated shipping needs in anticipation of the national railway strike. When Fewless declined compensation offered to him personally by Navajo, an alternate arrangement was set up whereby Susan Fewless and SKAN would receive commissions from Navajo for the Wyeth freight. The record establishes that the only reason Navajo chose Susan Fewless as its agent was because she could consult with Fewless.
As a fiduciary, Fewless owed Central a strict duty of good faith and was not permitted to engage in activities in the course of his duties for his own benefit. Production Finishing, supra at 486. In violation of these duties, Fewless diverted from Central $55,000 in commissions earned during the course of his employment. Reasonable minds could not find otherwise. Accordingly, the trial court’s grant of a directed verdict with regard to this issue was proper.
3
Defendant tqi seeks relief from judgment pursuant to MCR 2.612(A)(1), which provides as follows:
Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initia tive or on motion of a party and. after notice, if the court orders it.
Because this case is on appeal, the trial court may not amend the judgment except by order of this Court.
The purpose behind MCR 2.612(A)(1) is “ ‘to make the lower court record and judgment accurately reflect what was done and decided at the trial level.’ ” McDonald’s Corp v Canton Twp, 177 Mich App 153, 159; 441 NW2d 37 (1989) (citation omitted). Here the written judgment does not comport with the trial court’s intended and orally expressed ruling that the directed verdict was to be entered against all defendants except tqi. We thus remand this case to the trial court to correct the judgment to accurately reflect what was decided by the trial court.
vn
We reverse the trial court’s denial of defendants’ motion for offer of judgment sanctions and remand for consideration of the appropriate fees to be awarded pursuant to MCR 2.405. Also, pursuant to MCR 2.612(A)(2), we remand this case for correction of the trial court’s written order granting plaintiffs’ motion for a directed verdict. We affirm the judgment of the trial court in all other respects. We do not retain jurisdiction.
Affirmed in part, reversed in part, and remanded.
Wahls, J., concurred.
This concept, developed in the mid-1980s with the deregulation of the trucking industry, involves providing administrative/analytical expertise and brokerage services to customers. In implementing the single source concept, Central seeks to direct business to one of its affiliates, but uses other carriers when necessary.
It is generally understood that temperature-controlled trailers and dry vans constitute wholly different markets.
At trial, Fewless testified that he advised Moroun about the opportunity to haul additional Wyeth freight, and that Moroun knew that Fewless had recommended that Wyeth contact Navajo in this regard.
Conflicting evidence was presented regarding whether Navajo or Terry Fewless suggested that Susan set up SKAN. It is undisputed, however, that Susan had absolutely no prior experience in the trucking industry and that her sole duties for Navajo consisted of two to three hours a week of relatively simple paperwork. For her efforts, SKAN received over $63,000 from Navajo from April through December 1992.
Although Central owned a few temperature-controlled trailers, they were primarily used to transport automobile windshields, and were never offered to Wyeth.
Defendants filed a counterclaim, but all counts were either voluntarily withdrawn or were the subject of summary disposition in favor of plaintiffs.
Moreover, testimony was presented that although Fewless incorporated tqi and made other preparations to establish his new business, he did not solicit any customers before his termination from Central. Although some evidence presented at trial tends to refute this fact, this was a question of fact properly left for the jury’s consideration.
Although plaintiffs suggest that Fewless used proprietary information of Central in establishing tqi, the evidence presented at trial regarding this was conflicting. Accordingly, a grant of jnov would have been improper. | [
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Per Curiam.
Third-party defendant Michigan Department of Corrections (doc) appeals as of right from the orders granting the motion of third-party plaintiff Charles Todd to file a third-party complaint, and subsequent orders entered pertaining to the third-party complaint. We reverse the court’s order granting third-party plaintiff’s motion to file a third-party complaint and vacate the subsequent related orders.
i
Plaintiff’s decedent, an inmate at the Brooks Correctional Facility, drowned while assigned to a work crew supervised by Todd. Plaintiff filed a suit for damages against the doc in the Court of Claims, McCleese v Dep’t of Corrections (No. 94-15319 CM). Plaintiff also filed a suit for damages against Todd and other individual DOC employees in the Muskegon Circuit Court, McCleese v Todd (No. 94-31415 NO).
Todd sought representation and indemnification from the doc, relying on the collective bargaining agreement between the Michigan Corrections Officers Association and the DOC. The DOC denied his request. Todd retained a private attorney and, on May 23, 1994, filed a motion in the circuit court seeking to add the doc as a third-party defendant. The third-party complaint sought indemnification, attorney fees, and costs.
On May 24, 1994, the Court of Claims sua sponte issued an order joining the Court of Claims case and the circuit court case pursuant to MCL 600.6421; MSA 27A.6421. The doc responded to Todd’s motion to add it as a third-party defendant, asserting that the circuit court lacked subject-matter jurisdiction because the Court of Claims has exclusive jurisdiction of third-party claims against the state. The circuit court issued an opinion and order granting Todd’s motion on June 20, 1994.
In its motion for rehearing and reconsideration, the DOC again argued that the circuit court lacked subject-matter jurisdiction. On July 12, 1994, the circuit court entered an order allowing Todd to add the doc as a third-party defendant in the circuit court case. The court denied the DOC’s motion for reconsideration.
On July 26, 1994, the DOC filed a motion for summary disposition under MCR 2.116(C)(4), asserting that Todd had failed to exhaust administrative remedies. Subsequently, in March 1995, a “stipulation and order dismissing lawsuits against defendant Berghuis and defendant Michigan Department of Corrections” was entered. The order stated that it “does not provide for dismissal of doc as third party defendant in the cross-claim filed by Todd.”
In May 1995, the court denied the DOC’s motion for summary disposition. In January 1996, Todd filed a motion for summary disposition pursuant to MCR 2.116(C)(9) and (10). In March 1996, an order of judgment was entered against Todd in the amount of $250,000, Todd and plaintiff each having accepted the mediation evaluation entered relative to the other.
On April 1, 1996, the circuit court entered an order granting Todd’s motion for summary disposition under MCR 2.116(C)(10), ordering the doc to pay Todd’s reasonable attorney fees in defending the action by plaintiff, and ruling that Todd had been wrongfully denied legal representation and indemnification by the doc, in violation of the collective bargaining agreement. The DOC’s motion for reconsideration was denied.
n
The doc first argues that the circuit court lacked subject-matter jurisdiction to permit and decide Todd’s third-party complaint. We agree.
A
Lack of subject-matter jurisdiction may be raised at any time. Winters v Dalton, 207 Mich App 76, 79; 523 NW2d 636 (1994). Whether subject-matter jurisdiction exists is a question of law for the court, which we review de novo. MCR 2.116(C)(4); Dep’t of Natural Resources v Holloway Constr Co, 191 Mich App 704, 705; 478 NW2d 677 (1991). Jurisdiction does not inhere in a court; jurisdiction is conferred on a court by the power that creates it. Detroit v Rabaut, 389 Mich 329, 331; 206 NW2d 625 (1973). When a court is without jurisdiction of the subject matter, any action with respect to such a cause, other than to dismiss it, is absolutely void. Williams v Shin, 111 Mich App 84, 90; 314 NW2d 529 (1981).
The Court of Claims has exclusive jurisdiction over claims made against the state of Michigan, including third-party claims against the state. Id. at 86-87; MCL 600.6419; MSA 27A.6419. The exclusive jurisdiction of the Court of Claims extends to “all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms, or agencies.” Lowery v Dep’t of Corrections, 146 Mich App 342, 347; 380 NW2d 99 (1985); MCL 600.6419(l)(a); MSA 27A.6419(l)(a). A complaint seeking only money damages against the state must be filed in the Court of Claims, as must a complaint seeking both money damages and equitable relief against the state. Silverman v Univ of Michigan Bd of Regents, 445 Mich 209, 217; 516 NW2d 54 (1994).
Court of Claims cases may be joined for trial with cases arising out of the same transaction or series of transactions that are pending in any of the various circuit courts of the state. MCL 600.6421; MSA 27A.6421. Once joined, “[a] case in the court of claims shall be tried and determined by the judge even though the trial court action with which it may be joined is tried to a jury under the supervision of the same trial judge.” Id. The purpose of the joinder statute is to permit joinder of actions arising out of the same transaction in order to ensure their speedy and efficient resolution. Longworth v Dep’t of State Hwys, 110 Mich App 771, 776; 315 NW2d 135 (1981). However, the fact that actions initially filed in the Court of Claims can be heard by a circuit judge sitting as the Court of Claims does not mean that the circuit judge may exercise original subject-matter jurisdiction over third-party claims filed against the state in the circuit court. Williams, supra at 89-90.
B
The order of joinder did not create jurisdiction in the circuit court to adjudicate Todd’s separate third-party complaint against the DOC. Todd has cited no authority, nor have we found any, to support a contrary finding. Todd’s third-party complaint did not arise from, and was not filed in, the Court of Claims case, which, following the order of joinder, the circuit judge was authorized to hear sitting as the Court of Claims. Rather, Todd’s third-party complaint arose from, and was filed in, the circuit court case against him in his individual capacity, in which the circuit judge was not sitting as the Court of Claims.
The circuit court’s opinion granting Todd’s motion to file a third-party complaint against the DOC stated in pertinent part:
The Court continues to hold that the instant action is governed by the rules in Longworth v Highway Dep’t [supra at 775-775]. The Court held at page 775 that the joinder provision of MCL 600.6421, MSA 27A.6421 provides for what is in effect a “consolidation” of the two actions. MCR 2.505(3) provides that in consolidated actions the Court may “enter orders concerning the proceedings to avoid unnecessary cost or delay.” Indeed, at page 776 the Longworth court noted that the purposes of MCL 600.6421, MSA 27A.6421 “is to permit joinder of actions arising out of the same transaction in order to ensure their speedy and efficient resolution.” If the Court accepted defendant’s reasoning, it would have added to the cost and delay, and would have hindered a speedy and efficient resolution, to have required Todd to go back to the Court of Claims to file his action for indemnification, and then have the Court of Claims order the action joined with the circuit court action. In the absence of any case law directly on point, the Court continues to hold that the purposes of the aforementioned statute and court rule, and the holdings of Longworth, ibid, support a rule that after a court of claims action has been consolidated with a circuit court action, the State of Michigan may be named as a party defendant or third-party defendant in the circuit court action in the court which at the time is simultaneously exercising concurrent jurisdiction as both a circuit court and court of claims.
In Longworth, the plaintiffs brought suit in the Court of Claims against the Department of State Highways and Transportation and brought a separate suit in the circuit court against three construction companies. The Court of Claims case was joined with the circuit court case on the plaintiffs’ motion. On the morning of trial, the plaintiffs reached a settlement with the three construction companies. The department filed a motion to remove the case to the Court of Claims, which was denied. The case against the department was tried, and damages were awarded to the plaintiffs. On appeal, this Court rejected the department’s argument that the trial court lacked jurisdiction after the circuit court case was dismissed:
The purpose of [MCL 600.6421; MSA 27A.6421] is to permit joinder of actions arising out of the same transaction in order to ensure their speedy and efficient resolution. . . . While no case speaks precisely to this point, we are convinced that the purpose of the joinder provision would be ill-served by requiring a removal under these circumstances, since such a removal would result both in delay and in inefficient use of judicial resources. Accordingly, we find that the trial court correctly denied defendant’s motion for removal. [Longworth, supra at 776-777.]
Longworth holds only that a Court of Claims action properly joined with a circuit court action under the statute need not be removed to the Court of Claims when the circuit court action is resolved before trial. Stated differently, the circuit judge, properly sitting as the Court of Claims with subject-matter jurisdiction over the Court of Claims action, was not divested of the jurisdiction to sit as the Court of Claims when the circuit court case with which the Court of Claims case was joined was dismissed. Longworth does not address the subject-matter jurisdiction issue presented in the instant case: the effect of an order of the Court of Claims joining a Court of Claims case and a circuit court case on the circuit court’s subject-matter jurisdiction over a proposed third-party complaint in the circuit court case seeking money damages from the state. Further, although one of the aims of MCL 600.6421; MSA 27A.6421 is to ensure the speedy and efficient resolution of cases arising out of the same transaction, a circuit court cannot assume subject-matter jurisdiction in order to promote efficiency where there is otherwise no jurisdiction. The circuit judge’s authority to sit as a Court of Claims judge extended only to the Court of Claims case and, consequently, only to claims asserted against the state in the Court of Claims case. The circuit court had no subject-matter jurisdiction over a claim against the state brought in the circuit court case, and the circuit court could not assume that jurisdiction on its own. See Williams, supra. The claim for indemnification should have been brought in the Court of Claims.
The circuit court having lacked subject-matter jurisdiction, any action with respect to Todd’s third-party complaint against the DOC, other than to dismiss it, was void. Fox v Bd of Regents of the Univ of Michigan, 375 Mich 238, 242; 134 NW2d 146 (1965). For that reason, we reverse the circuit court’s order granting Todd’s motion to file his third-party complaint and vacate the subsequent orders pertaining to the third-party complaint. Because the circuit court was without jurisdiction to render its decisions concerning the merits of the claims raised in the third-party complaint, we need not address on the merits the issues raised on appeal concerning the propriety of those decisions.
Reversed.
The doc’s claim of appeal states that it appeals from seven orders of the circuit court. | [
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Fellows, J.
On November 8, 1904, Mary A. Sandell, a resident of Kent county, executed a purported indenture of trust by which she transferred to William Fu Sandell, a resident of Ionia county, as trustee, her property upon the conditions named in the instrument, which need not be here detailed. The trust was accepted and during his lifetime William F. administered it. Both he and Mary A. are now deceased. Plaintiff trust company is the executor of his last will and testament and special administrator of her estate. Shortly after Mr. Sandell’s death, one Chamberlin filed a bill in the Ionia circuit court, in chancery, under section 11588, 8 Comp. Laws 1915, and defendant National Bank of Ionia was appointed to execute the trust. Defendant Lind is its trust officer. Plaintiff, insisting that the trust attempted to be created is invalid for reasons stated, filed this bill in the circuit court for Kent county, in chancery, asking that it be so decreed. The bill sets up the proceeding in the Ionia circuit and asks discovery by the bank and injunction pendente lite to restrain distribution or incumbrance of the property. Defendant bank and its trust officer appeared specially and moved to dismiss the bill on the ground that the Kent circuit court, in chancery, had no jurisdiction. From a decree dismissing the bill for this reason, plaintiff appeals.
It is urged on behalf of defendants that the property here involved is in custodia, legis, in the hands of the Ionia court through the trustee appointed by it, and that another court of concurrent jurisdiction may not entertain litigation with reference to it, and that plaintiff should intervene in that case under the provisions of section 12362, 3 Comp. Laws 1915. We shall presently point cut what we deem the proper practice to be followed in order to litigate the questions involved in this case, but intervention under this statute is not available to plaintiff to assert the claims here asserted. The statute requires that the intervention “shall be in subordination to, and in recognition of, the propriety of the main proceeding,” and in at least two cases (Chase v. Washtenaw Circuit Judge, 214 Mich. 288, and Sidebottom v. Calhoun Circuit Judge, 202 Mich. 116) this court has held that intervention may not be had to question an attachment levied upon property standing in the intervenors’ names but levied upon as the property of the defendant. In both cases under process of the court property had been attached; in both cases the title to the property was in the petitioners for leave to intervene. In the Sidebottom Case all members of the court agreed .that petitioners could not intervene to move to dissolve the attachment, and in the Chase Case all agreed that petitioners could not intervene to try the title to the property. It is quite likely that these two decisions prompted the legislature to amend this section (Act No. 280, Pub. Acts 1923). The amendment has no bearing on the question here involved. Except as to cases falling Within the amendment, the intervenor takes the case as he finds it. In the instant case the Ionia court had, by entertaining the bill, of necessity decided prima facie that a trust estate existed, and, by appointing ' a trustee to administer the estate, decided that it should be administered under the provisions of the section cited. Plaintiff claims there is no trust; that the instrument attempting to create it is a nullity, and that, therefore, it, in its representative capacity, is entitled to the fund now in the hands of the trustee. Manifestly, the assertion of such a claim is not in “subordination” or in “recognition” of the propriety of the Ionia proceeding. It is quite true, as suggested by counsel for the moving defendants, that they would be estopped by their contention here from raising such question, but there are other defendants who could raise it, and we should in this case lay down the correct practice.
The property involved in this- litigation is in the hands of the circuit court for the county of Ionia, in chancery, acting through its appointee as trustee. Under these circumstances we are of opinion that plaintiff may not, in an independent suit in the Kent circuit, litigate the question of whether such possession is lawful, and, if found unlawful, have decree of that court taking such property out of the possession of the Ionia court and turning it over to this plaintiff. The question has most frequently arisen in receivership proceedings, and counsel for appellee have cited us to a number of receivership cases, but, as we shall presently see, property may be in custodia legis although it be in the possession of some officer of the court other than a receiver, and in such cases the doctrine of the receivership cases applies. Compton v. Jesup, 68 Fed. 263, was a receivership case; the opinion is an exhaustive one, written by present Chief Justice Taft, then circuit judge. He said:
“Necessity and comity both require that where, by its officers acting under color of its order or process, a court has taken into its custody property of any kind, another court, though of equal and co-ordinate jurisdiction, should not be permitted either- to oust the possession of the first court, or in any way to interfere with its complete control and disposition of the property for the purpose of the cause in which its action has been invoked.”
In City Bank of Wheeling v. Bryan, 76 W. Va. 481 (86 S. E. 8, L. R. A. 1915F, 1219), it was said:
“A receiver is the officer of the court that appoints him, and derives all his authority from its decrees and orders, and is accountable to. it alone for the faithful administration of his office. Immediately upon his appointment and qualification he is vested with the right to the possession and management of the assets to be administered. This is especially so in the case of an insolvent corporation. The property of which a receiver has charge is in custodia legis. His appointment and qualification is a sequestration of the property by the court, for the purpose of administering it for the best interests and protection of'the rights of all persons interested in the estate. His possession is the court possession, and he is subject only to its orders.”
The holdings are in consonance with a long line of cases, among them see Wiswall v. Sampson, 14 How. (U. S.) 52; Taylor v. Carryl, 20 How. (U. S.) 583; Freeman v. Howe, 24 How. (U. S.) 450; Hawk v. Harris, 112 Iowa, 543 (84 N. W. 664, 84 Am. St. Rep. 352); State, ex rel. Titlow, v. City of Centralia, 93 Wash. 401 (161 Pac. 74) ; In re Antigo Screen Door Co., 123 Fed. 249; Porter v. Kingman, 126 Mass. 141; Freydendall v. Baldwin, 103 Ill. 325; Gilmore v. Bidwell, 191 Ill. App. 152; Morgan’s Louisiana, etc., Steamship Co. v. Railway, 137 U. S. 171 (11 Sup. Ct. 61); Byers v. McAuley, 149 U. S. 608 (13 Sup. Ct. 906).
We have noted the fact that the rule is applicable to cases where the property was not in the hands of a receiver. In Byers v. McAuley, supra, an administrator had been appointed by the State court. The Federal district court had assumed jurisdiction over the administrator. It was held by the Supreme Court of the United States (quoting from the syllabus) :
“An administrator appointed by a State court is an officer of that court; his possession of the decedent’s property is the possession of that court; and as such it can not be disturbed by process issued out of a Federal court.”
In Hawk v. Harris, supra, the property of a minor had been attached. Afterwards a guardian was appointed for him by the probate court. It was held that the property attached was in the hands of the court issuing the attachment and the appointment of a guardian by the probate court did not withdraw it to the probate court. In Freydendall v. Baldwin, supra, the property was in the hands of the county court under an assignment for the benefit of creditors, and it was held that a creditor’s bill in chancery was not maintainable. In Gilmore v. Bidwell, supra, certificates of stock had been placed in the hands of the clerk by order of the court; it was held that they could not be reached by replevin from another court of concurrent jurisdiction. Numerous Federal cases will also be found sustaining the rule where the question arose in conflict between Federal and State authorities and the processes issued by Federal and State courts. We conclude the rule is applicable to the instant case, and that the property now in the hands of the trustee appointed by the Ionia court may only be disbursed by an order or decree of that court, and that it may not be paid out or disbursed by an order or decree of the Kent court.
We are, therefore, confronted with this situation: Plaintiff may not maintain an independent bill in the Kent circuit nor may he intervene under the statute in the Ionia proceedings to raise the question sought to be raised. But somewhere in some court plaintiff is entitled to be heard and to have its rights adjudicated. The court of appeals of Virginia, in Spiller v. Wells, 96 Va. 598 (32 S. E. 46, 70 Am. St. Rep. 878), said:
“Nothing can be more unseemly than a struggle for jurisdiction between courts; but a rule which rests for its support upon considerations of convenience, however great, and of decency, order, and priority, however exacting, must yield to the higher principle which accords to every citizen the right to have a hearing before some court. An essential condition, therefore, of the application of the rule insisted upon as to priority of jurisdiction, is that the first suit shall afford the plaintiff in the second an adequate and complete opportunity for the adjudication of his rights.”
This was said, however, in considering the question of conflicting jurisdictions, but in Brown v. Stuart, 90 Kan. 302 (133 Pac. 725), that court went further and held that an action which did not disturb the immediate possession of another court was maintainable. We are persuaded, however, that an orderly method of procedure has been outlined by the Federal courts, which deal with a large number of receivership matters, which not only preserves the rule and at the same time furnishes a full and complete remedy to all parties, but which does not in any way interfere with a proper and due administration of justice: Frequently a receiver has among the assets turned over to him some property belonging to a stranger to the case; in such case a simple petition will present the matter to the court. We have recognized the propriety of such proceedings. Other matters may arise during the administration of a receivership or a trust estate which may properly be disposed of on petition. Such a proceeding, however, would be inappropriate for the determination of the question here involved. The Federal courts have recognized the propriety of filing an ancillary bill in the court having custody of the property, and this, we think, is an appropriate proceeding. Speaking of it in a note (29 Ann. Cas. pp. 1032, 1033), the editorial writer says:
“By means of the dependent or ancillary suit, a new but subordinate litigation is begun; and, if the original suit has not already come to a hearing, the dependent suit may be conducted pari passu with it, or con solidated, or kept separate, as convenience, under the particular circumstances, may suggest. The adoption of ancillary proceedings, as a means of protecting the rights of a stranger to the original litigation, does not necessarily make such person an actual, party to the original proceedings. It merely 'begins a new litigation, so related to the first that the rights of the new plaintiff cannot be adversely affected by the adjudication finally reached in the original suit. * * *
“As regards the pleading and practice in ancillary suits, it is to be observed that the mere fact that one suit is dependent on another does not in any respect dispense with the ordinary rules of pleading and practice as to the parties necessary and proper to such a cause of action, or as to the forms of pleading and procedure. Though the res acquired by the court under the original bill gives ancillary jurisdiction to entertain a dependent bill, the parties to the- original bill are not thereby made parties to the dependent bill. Nor have the parties to the original bill any more right to intervene in the ancillary suit than if the court were exercising an independent jurisdiction. In other- words, the relation between the two suits as principal and auxiliary is confined to the point of jurisdiction only. Having gotten jurisdiction in the dependent suit by reason of the possession of the res acquired in the principal suit, the court proceeds in the second suit without further regard to the original suit, or regarding it only as any other independent suit would be regarded.”
In Compton v. Jesup, supra, it was said:
“Now, it frequently happens that under the process of the Federal courts, exercising the original and lawful jurisdiction conferred expressly by the Federal Constitution and statutes, possession is taken and control exercised over property in which persons not indispensable parties to the suit have an interest, by lien, mortgage, and in other ways. In such cases there often is no diversity of citizenship between such persons and the plaintiff or defendant to the suit which would warrant the Federal court in hearing an independent suit between them. But it may be essential, to preserve intact their rights in the property, that such third persons should be permitted, at once, to have specific relief which can only be granted by a court having possession and control of the property. And yet, in accordance- with the principle already stated, no court 'but the Federal court can exercise possession and control over the property in its custody. Of necessity, therefore, the Federal courts exercise an ancillary jurisdiction in such cases; and third persons are permitted to come into the Federal court, and set up their interest in the property, and secure the same full and adequate protection and relief to which they would be entitled in any court of competent jurisdiction, were the property not impounded in the Federal court.”
Mr. Justice Nelson, speaking for the court in Freeman v. Howe, Supra, said:
“The principle is, that a bill filed on the equity side of the court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice, or an inequitable advantage under mesne or final process, is not an original suit, but ancillary and dependent, supplementary merely to the original suit, out of which it had arisen, and is maintained without reference to the citizenship or residence of the-parties.”
Krippendorf v. Hyde, 110 U. S. 276 (4 Sup. Ct. 27), is quite in point. An attachment was issued by the circuit court of the United States for the district of Indiana and levied upon property claimed to be owned by appellant; he gave bond for delivery of the goods which he was required to pay. He attempted to intervene in the case but under the Indiana practice applicable to the Federal court was unable to do so. As pointed out by the court, he could not bring replevin in the State court, because the property was in the custody of the Federal court. He, therefore, filed his bill in that court to have his rights determined and to restrain the marshal from disposing of the funds in his hands. ■ The bill was dismissed in the circuit court. The Supreme Court of the United States, in reversing the case, considers the question at some length. After quoting the language of Mr. Justice Nelson, just quoted by us, it was said:
“It has been sometimes said that this statement was obiter dictum, and not to be treated as the law of the case; but it was, in point of fact, a substantial part of the argument in support of the judgment, and, on consideration, we feel bound to confirm it in substance as logically necessary to it. For if we affirm, as that decision does, the exclusive right of the circuit court in such a case to maintain the custody of property seized and held under its process by its officers, and thus to take from owners wrongfully deprived of possession, the ordinary means of redress by suits for restitution in State courts, where any one may sue, without regard to citizenship, it is but common justice to furnish them with an equal and adequate remedy in the court itself which maintains control of the property; and, as this may not be done by original suits, on account of the nature of the jurisdiction as limited by differences of citizenship, it can only be accomplished by the exercise of the inherent and equitable powers of the court in auxiliary and dependent proceedings incidental to the cause in which the property is held, so as to give to the claimant, from whose possession it has been taken, the opportunity .to assert and enforce his right. And this jurisdiction is well defined by Mr. Justice Nelson, in the statement quoted, as arising out of the inherent power of every court of justice to control its own process so as to prevent and redress wrong.”
Where the bill is in reality an ancillary bill, the court will not reverse because unable to give it a proper cognomen. In Morgan’s Louisiana, etc., Steamship Co. v. Railway, 137 U. S. 171, 201 (11 Sup. Ct. 61), it was said:
_ “And whether this bill be regarded as a pure cross-bill, as an original bill in the nature of a cross-bill, or as an original bill, there is no error calling for the disturbance of the decree because the court proceeded upon it in connection with the other pleadings. The jurisdiction of the circuit court did not depend upon the citizenship of the parties, but on the subject-matter of the litigation. The property was in the actual possession of that court, and this drew to it the right to decide upon the conflicting claims to its ultimate possession and control.”
It follows that the decree dismissing plaintiff’s bill must be affirmed. This, of course, is without prejudice to the filing of an ancillary bill in the circuit court for the county of Ionia, in chancery. Defendants will have costs of this court.
Sharpe, C. J., and Bird, Flannigan, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice Snow.took no part in this decision. | [
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Bird, J.
Plaintiff, a retail coal dealer in Waltz, purchased from defendant a car load of anthracite coal in December, 1922, for which he paid in advance $14 per ton, or a total of $650, and was to pay the freight soon after delivery. When it arrived plaintiff made a few sales, and soon learned that the coal was nearly worthless, and not what he had ordered. He called defendant on the ’phone and advised it of the condition of the coal, and informed it that he refused to accept it. Defendant advised him to sell the coal for what he could get and it would make the matter right. He tried to make sales but sold only a small amount. Defendant did not feel disposed to make him good, and he commenced this suit in assumpsit in justice’s court to recover the $650, which he had paid, less what he had received for the few sales he had made. The justice found with him and gave him a judgment for $460.34. An appeal to the circuit court was taken and tried before the court without the aid of a jury. The circuit court found that plaintiff was entitled to the same amount, with interest added, and a judgment was rendered for $522.58. Had the matter ended there plaintiff would have been content, but the trial court made the further finding:
“I further find that when plaintiff contracted to purchase said car load he was, in addition to $14 per ton, also to pay the freight which he refused to pay and the defendant coal company was afterwards compelled to pay such freight and the same amounted to the sum of $246.86, which sum I allow as an offset against the amount coming to and hereby allowed to the $aid plaintiff, together with interest on said $246.86 at 5 per cent, per annum, being $55, leaving a balance in favor of the plaintiff of $220.08, and I further find that as the defendant has reduced by such set-off the judgment below of $460.84 he is thereby entitled to costs to be taxed.”
Of this finding plaintiff makes complaint. He argues that if he did not get what he ordered, he ought not to be obliged to pay for bringing it to him. We lT*re impressed that plaintiff is right, and that the trial court lost sight of just what the plaintiff’s position was. Plaintiff brought suit against defendant to recover what he had advanced on a car load of coal' of a certain grade which he did not get. The amount was $650. Under a new arrangement with defendant he realized something out of the coal, and, of course, this was to be deducted from the $650. This left a balance of $460.34, plus the interest. Had plaintiff paid the freight before the coal was unloaded, he would have been entitled to recover that sum in addition to the sum of $650 which he advanced. If plaintiff is entitled to be relieved from making payment for the coal because of a failure of consideration, it is hardly consistent to make him pay the freight cn the coal. We think plaintiff is entitled to a judgment of $460.34, plus the interest.
' The judgment will be reversed and one entered in Plaintiff the trial court for the foregoing amount, will recover his cost's in both courts.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
Chief Justice Flannigan and the late Justice Snow took no part in this decision. | [
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Clark, J.
Plaintiffs had title to a small farm in Macomb county, subject to a mortgage of $3,000. They also owned some chattels thereon. They had lived but a short time on the farm and desired to return to Detroit. Defendants were purchasers under land contracts of two parcels of land in Detroit on which there was yet to be paid nearly $16,000. They valued their interests or equities in these properties at approximately $6,000. An exchange was agreed upon and made. Defendants gave to boot in cash $650. Later plaintiff Albert Mielke was injured and disappointed in employment. Thoughts and desires of both himself and his wife, the other plaintiff, returned to the farm. They filed this bill, alleging fraud and praying rescission, and, failing to prevail, they have appealed.
The question is of fact. Plaintiffs as witnesses gave very unsatisfactory testimony, replete with inconsistent and contradictory statements. ' Defendants’ testimony is more credible. Plaintiffs’ allegations of fraud are not sustained by a preponderance of evidence. We mention but two of such allegations: Plaintiffs profess to have been misled by defendants’ statement that the value of their equities in the Detroit proper ties was nearly $6,000, and they point out that defendants had not paid that amount on the contracts» But, being pressed on the witness stand, plaintiffs admitted understanding of what was meant by “equity,” and in effect destroyed the allegation of fraud. We find no fraud established with respect to the values placed on the properties for the purpose of exchange. Another matter relates to alleged padlocking of one of the Detroit properties. Of that the trial judge properly said:
“As to the padlocking proceeding, the evidence seems to amount only to a notice that had been posted on the premises by padlock proceedings or that such proceedings were pending. There is no evidence that an order had been issued padlocking the premises. In order to avoid any possibility of a padlocking occurring a bond was given and thus forestalled the order and it was accepted by the Federal authorities and the premises were never padlocked at all. That is the conclusion of the court as to that matter.”
After considering all the evidence, we are in accord with the trial court.
Decree affirmed, with costs to defendants.
Flannigan, C. J., and North, Fellows, Wiest, McDonald, Bird, and Sharpe, JJ., concurred. | [
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Bird, J.
Mary Andrews was a spinster and a longtime resident of Dowagiac. She passed away in 1924, and left a will, one provision of which is in controversy here. The fourth paragraph provides:
“All the balance of my estate, whether the same be real or personal, I hereby give, devise and bequeath to the city of Dowagiac, a municipal corporation, the same to be used by the said city for the purpose of providing a suitable playground for children, and I hereby direct that the sum of money or other property received by the said city under this bequest or devise shall be used for no other purpose.”
The plaintiffs are cousins of the deceased, and they raise the question that this provision of the will creates a perpetuity, is uncertain as to its object, and uncertain as to the parties sought to be benefited. We do not share plaintiffs’ views. Why we do not can be readily explained by quoting the statute:
“No gift, grant, bequest or devise, whether in trust or otherwise to religious, educational, charitable or benevolent uses, or for the purpose of providing for the care or maintenance of any part of any cemetery, public or private, or anything therein contained which shall in other respects be valid under the laws of this State, shall be invalid by reason of the indefiniteness or uncertainty of the object of such trust or of the persons designated as the beneficiaries thereunder in the instrument creating the same, nor by reason of the same contravening any statute or rule against perpetuities. If in the instrument creating such a gift, grant, bequest or devise, there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes, shall vest in such trustee. If no such trustee shall be named in said instrument or if a vacancy occurs in the trusteeship, then the trust shall vest in the court of chancery for the proper county, and shall be executed by some trustee appointed for that purpose by or under the direction of the court; and said court may make such orders or decrees as may be necessary to vest the title to said lands or property in the trustee so appointed.” 3 Comp. Laws 1915, § 11099.
This bequest clearly comes within the word “educational.” School sites are now selected with a view of having playgrounds for the children. The opportunity for play and exercise is now considered a part of the child’s education, and no school site is regarded as complete unless this facility is afforded. The de ceased had, in earlier life, been a teacher in the Dowagiac schools. Her other bequest shows she was much interested in school children, and she supplied by this bequest what she thought would be for their benefit and improvement.
But it is argued that this statutory provision is unconstitutional because of a defective title. That question was raised and discussed at some length in Loomis v. Mack, 183 Mich. 674. The point was denied by the trial court and affirmed in this court, by an equally divided vote. That case, however, considered the validity of the title to Act No. 122, Pub. Acts 1907, as amended by Act No. 125, Pub. Acts 1911. Since that time the statute has been amended again. The section quoted herein was enacted in May, 1915, and avoided the constitutional objections raised against the title to Act No. 122, Pub. Acts 1907. In view of this, counsel’s argument that the title is defective is without force.
Another statute is cited by defendant’s counsel in support of the provision of the will. It follows:
“Any city, village, township or other municipal corporation in the State of Michigan may receive, own and enjoy any gift of real or personal property, made by grant, devise, bequest or in any other manner, for public parks, grounds, cemeteries, public buildings and other public purposes, whether made directly or in trust, subject to such conditions, limitations and requirements as may be provided in such grant, devise, bequest or other instrument. No such gift shall be invalid because of any informality in the instrument evidencing such gift, if the intent can be determined therefrom, nor by reason of its contravening any statute or rule against perpetuities. All such gifts heretofore made, either by grant, devise, bequest or in any other manner are hereby declared valid, though they violate any statute or rule against perpetuities, the same as if this act had been in effect when made.” 1 Comp. Laws 1915, § 3301.
This section also sustains the validity of the pro vision of the will and is a complete answer to some of plaintiffs’ contentions. These státutes were enacted by the legislature to do away with some of the restrictions and-niceties of the common law. The conditions which gave rise to them never existed in this country, and no reason is apparent why we should continue to observe them.
The trial court was right in sustaining the provision of the will, and the decree will be affirmed, with costs of both courts to defendants.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
The late Justice Snow and Chief Justice Flannigan took no part in this decision. | [
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Clark, J.
Plaintiff, Emma Ashley, was beneficiary in a life insurance policy for $2,000 issued to her son, Harold Ashley, by defendant. Thei insured died on or about November 20, 1926. For this defendant admitted liability and its willingness to pay. The controversy-relates to what is called a double indemnity rider, attached to the policy, which provided that for an added premium, which was furnished, the defendant was to pay an additional $2,000 in the event of the death of the insured
“resulting from bodily injury, sustained and effected directly through external, violent and accidental means (murder or suicide, sane or insane, not included) exclusively and independently of all other causes, provided such death shall occur within ninety (90) days from the date of the accident.”
Insured and a companion- were camped for hunting deer at Moran in Mackinac county. On Friday, November 19, 1926, with a guide they left camp and drove nearly 20 miles to some hardwooded upland, where they left the car and separated to hunt, insured, with sufficient clothing, following the track of a deer. They were to meet at the car later in the day. Insured did not return. The weather was pleasant but in the afternoon turned cold with wind and snow. That night his companions searched by following his tracks nearly three miles to the edge of a large swamp where it became evident he had become lost. His tracks led in all directions in the snow “like a lost man would do.” He had attempted unsuccessfully there to kindle a fire. Search continued aided by woodsmen and State troopers. Insured had wandered into the swamp and had walked about there and on small patches of upland therein. On the Monday-following his body frozen stiff was found over a log in the swamp, his feet, his hands, and a part of his head frozen into the thin ice that covered the swamp.
Appellant’s statements in the brief that insured became lost,and that he “came to his death by the exposure he was subjected to and the bitter cold weather” are approved by appellee. Both sides requested directed verdict. Plaintiff had judgment on directed verdict for $2,000 and interest, not $4,000 and interest, and she brings error.
Insured’s becoming lost was not by design, volition, or intent. It was not an expected or usual incident of hunting. It was unusual and unexpected, fortuitous. He became lost accidentally. 1 C. J. p. 390. His death was caused by accidental exposure to storm and frost. Freezing in and of itself is not an accident. Sherman v. Flint Spring Water Ice Co., 229 Mich. 648. But if joined with a fortuitous, unusual, unexpected circumstance or event, it may constitute an accident. Mauch v. Bennett & Brown Lumber Co., 235 Mich. 496. Deceased suffered an accidental death. But it is contended that it was not produced through accidental means, or “through external, violent and accidental means.” These words just quoted were before the court in United States Mut. Accident Ass’n v. Barry, 131 U. S. 100 (9 Sup. Ct. 755), from which we quote:
“The court properly instructed the jury that the term ‘accidental’ was used in the policy in its ordinary, popular sense, as meaning ‘happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected;’ that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but, that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has. resulted through accidental means.”
We find no better statement of the rule. See notes in 14 A. L. R. 788, 7 A. L. R. 1131, and 8 A. L. R. 231, where many cases are reviewed. And, see, Tuttle v. Insurance Co., 58 Mont. 121 (190 Pac. 993, 16 A. L. R. 601).
The authorities are not in harmony with respect to a distinction between accidental death and death by accidental means, but, conceding the distinction, we find no difficulty here under the rule above quoted. The authorities are quite in accord in holding that where one has fallen into water involuntarily and drowned, the death is through external, violent, and accidental means. Water is not an accident. But the fall which preceded the drowning, being unforeseen, unexpected, accidental, the water connected with the fortuitous mishap, the fall, became the accidental means, the instrument of death. So here, insured became lost accidentally, and thereby suffered accidental and enforced exposure to storm and frost and thereby died. The storm and frost were, in the season of the year and in this latitude, usual incidents of weather. They were not accidental. 1 C. J. p. 391. But because of insured’s accidental exposure to them, the storm and frost so joined with the exposure became the accidental means of death. We see no difference in principle where one mistakenly and fortuitously loses his way and falls into water to his death, and where one mistakenly and fortuitously loses his way in the forest and thereby falls, a victim of the elements.
The case nearest in point which has come to our attention is North West Com. Trav. Ass’n v. London Guarantee & Accident Co., 10 Manitoba, 537. There the insured froze to death as a result of the breaking down of a conveyance in which he was riding and of the enforced exposure to storm and cold, and it was held that his death was caused through external, violent, and accidental means.
Richards v. Insurance Co., 58 Utah, 622 (200 Pac. 1017, 17 A. L. R. 1183), involved a policy insuring against loss, etc., through accidental means. Insured was going into the desert to inspect a mine. He was not met by horses as expected and was compelled to make the journey on foot, and, misinformed of the distance, did not take water enough. He suffered sunstroke and died. We quote from the opinion:
“If the sunstroke in the present case was not, in and of itself, an accidental means, as we think it was, it, nevertheless, according to the undisputed evidence, resulted from accidental cause.”
In the case at bar the death was unnatural, produced by violent means (1 C. J. p. 432, 14 R. C. L. p. 1249), which were also external, and, as we have seen, accidental.
“In a provision of an accident insurance policy restricting the liability to injuries effected through external, violent, and accidental means, the term ‘external’ refers to the means of the injury and not to the injury itself, and the fact that an injury is accidental and unnatural, naturally imports an external and violent agency as its cause. Dezell v. Casualty Co., 176 Mo. 253 (75 S. W. 1102, 1105).” 2 Words and Phrases (2d Series), 417.
Reversed, with costs to plaintiff. As the question is of law, the cause is remanded for judgment in favor of plaintiff for the full amount.
Flannigan, C. J., and Fellows, Wiest, Bird, and Sharpe, JJ., concurred.
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Per Curiam.
These are consolidated appeals from two cases in which plaintiffs are residents of the Van Lopik and Limberlost subdivisions in Robinson Township who assert tort claims and constitutional violations against the township, the members of its board of trustees (Bernice Berens, Jackie Frye, Cheryl Clark, John Kuyers, Tracy Mulligan, Jacob Korving, Chris Kuncaitis, Ray Masko, Earl Rayla, Donna Stille, and Larry Harmon), its building officials (William Easterling and Phillip Forner), and others, after the Grand River flooded in the area of their homes in May 2004 and January 2005. The trial court granted in part and denied in part defendants’ motions for summary disposition in each case. In Docket No. 279020, defendants appeal and cross-appeal. In Docket Nos. 279064 and 279088, defendants appeal by leave granted. We reverse and remand for entry of summary disposition in favor of all defendants on all of plaintiffs’ claims.
The underlying dispute in these cases involves the application of the Single State Construction Code Act (SSCCA), MCL 125.1501 et seq. At the times pertinent to these actions (2004 and 2005), the applicable building code in Michigan was, with certain exceptions, the International Building Code (2003). The 2003 International Building Code was adopted by reference effective February 29, 2004. See 2004 AACS, R 408.30401. Specifically, the defendant building officials determined the cost of repairing plaintiffs’ flood-damaged homes would exceed 50 percent of the fair market value of plaintiffs’ homes before the flooding, thus triggering the application of flood-resistant building code requirements. 2003 Michigan Residential Code R105.3.1.1. The Cumminses, in Docket No. 279020, were the only parties who suffered damage in the 2004 flood and borrowed in excess of their home’s value to rebuild it under the flood-resistant building code requirements before the 2005 flood. Almost all plaintiffs in Docket Nos. 279064 and 279088 appealed to the Construction Board of Appeals (CBA) on the basis that the 50 percent threshold had not been reached. By December 1, 2005, the CBA had granted relief to all plaintiffs who appealed. All plaintiffs were reissued occupancy permits by October 2005, regardless of whether their homes complied with building code or health department regulations.
In Docket No. 279020, the Cumminses filed their complaint in July 2006, alleging 13 separate counts: (1) conspiracy to violate plaintiffs’ constitutional, statutory, and common-law rights, (2) concert of action to commit one or more tortious acts, (3) unlawful and unconstitutional extrajudicial taking, (4) deliberate and purposeful violation of state statutes governing the exercise of eminent domain, (5) fraud, (6) extortion, (7) trespass, (8) intentional infliction of emotional distress, (9) gross negligence, (10) substantive due process violation, (11) procedural due process violation, (12) denial of equal protection, and (13) punitive damages against the individual township trustees and building officials Easterling and Forner. The trial court granted Easter-ling and Forner’s motion for summary disposition pursuant to MCR 2.116(C)(4), (7), (8), and (10) with regard to all counts except counts (5) fraud, (9) gross negligence, and (10) substantive due process violation.
The trial court ruled that the Cumminses’ fraud claim against Easterling and Forner presented material issues of fact for trial. The court reasoned “that there is a genuine issue of material fact as to whether or not defendants made false material representations of facts to plaintiffs which plaintiffs relied upon.” On this basis, the trial court ruled that defendants’ motion for sum mary disposition regarding count (5) fraud failed pursuant to MCR 2.116(C)(10).
Regarding the Cumminses’ gross negligence claim against Easterling and Forner, the trial court also determined that a material question of fact existed over whether defendants’ conduct constituted gross negligence under MCL 691.1407. Specifically, the court ruled that a question of fact existed concerning whether defendants’ imposition of building code requirements after the 2004 and 2005 floods rose to the level of gross negligence and was the proximate cause of plaintiffs’ injuries.
The trial court also ruled that plaintiffs’ substantive due process claim survived defendants Easterling and Forner’s motion for summary disposition. Specifically, the court determined that a genuine issue of material fact existed regarding whether defendants acted arbitrarily and capriciously by imposing new building code requirements on plaintiffs in an effort to convince the Federal Emergency Management Agency (FEMA) to provide the township with grant funds to buy plaintiffs’ property. Easterling and Forner appeal by right.
Regarding the Cumminses’ claims against the township and its trustees, the trial court did not dismiss count (3) unlawful and unconstitutional extrajudicial taking, and count (10) substantive due process violation. The trial court ruled that plaintiffs’ taking claim was not barred by the doctrine of ripeness, reasoning that the CBA was not the initial decision maker and that an appeal by the Cumminses to the CBA would have been futile because the CBA could not award money damages. Further, the court determined that the Cumminses’ allegations that defendants engaged in a deliberate and aggressive course of action against plaintiffs to force them to sell their property without pay ment of just compensation and that defendants’ actions caused plaintiffs to expend thousands of dollars in unnecessary repairs, stated a claim for a de facto or regulatory taking for which issues of material fact remained.
The trial court, however, dismissed the Cumminses’ taking claims against the individual township trustees because the Cumminses produced no legal authority to establish that individuals — as opposed to the township— could take property for public use. The court also dismissed plaintiffs’ tort claims against the township and its trustees on the basis of governmental immunity.
The trial court granted defendants’ motion for summary disposition regarding plaintiffs’ procedural due process claim, but the court ruled that genuine issues of material fact remained with regard to the Cumminses’ substantive due process claim. As with this claim against Easterling and Forner, the trial court ruled that there was a genuine issue of material fact concerning whether defendants acted arbitrarily and capriciously when they imposed new building code requirements on plaintiffs in an alleged attempt to convince FEMA to provide the township with funds necessary to induce the Cumminses and other plaintiffs to sell their properties. Defendant Robinson Township and its trustees cross-appeal the various rulings of the trial court denying summary disposition with regard to plaintiffs’ taking and substantive due process claims.
In Docket No. 279064, defendants Easterling and Forner appeal by leave granted the trial court’s order that denied their motion for summary disposition, in part, with regard to plaintiffs’ claims for violations of their rights to substantive due process. In Docket No. 279088, the township appeals by leave granted the trial court’s order that denied its motion for summary dis position, in part, with regard to plaintiffs’ taking and substantive due process claims. Both of these appeals arise from the same lower court case.
Plaintiffs’ complaint set forth four unlabeled counts. The first count cited the Fifth Amendment of the United States Constitution and Const 1963, art 10, § 2, and alleged that defendants violated plaintiffs rights by
[fliling [a] false application for a FEMA grant, including the intent and plan to take Plaintiffs’ properties without just compensation; [and]
Imposing unwarranted re-build and renovation requirements that were not required to avoid the effects of periodic floods in the general area.
The trial court granted defendants Easterling and Forner’s motion for summary disposition regarding count I because the Taking Clause implicates only governmental, not individual liability. Plaintiffs apparently voluntarily dismissed both their taking and due process claims against the township trustees. As for plaintiffs’ taking claim against the township, the trial court ruled as it did in Docket No. 279020. It found that plaintiffs’ complaint pleaded facts that, if proved, would state a temporary taking claim and that genuine issues of material fact remained and precluded summary disposition.
Plaintiffs alleged in count II of their complaint that defendants violated plaintiffs’ rights under the Fifth Amendment and the Fourteenth Amendment of the United States Constitution and Const 1963, art 1, § 17. The trial court viewed this count as stating a claim based on both procedural and substantive due process. The trial court ruled that the procedural due process claim failed as a matter of law. But the trial court denied defendants’ motion with respect to plaintiffs’ substantive due process claim against the township and defen dants Easterling and Forner for the same reasons it denied summary disposition regarding similar claims by the Cumminses in Docket No. 279020.
The trial court granted defendants summary disposition of plaintiffs’ claims in count III (fraudulent misrepresentation) and in count IV (breach of duties “to fairly and responsibly enforce state and local laws”).
This Court granted defendants’ application for leave to appeal in Docket Nos. 279064 and 279088, in part, because nearly identical issues were already before the Court as an appeal by right in Docket No. 279020, arising out of same factual circumstances. The Court also consolidated all three appeals to advance the efficient administration of the appellate process.
This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A trial court properly grants the motion when the proffered evidence fails to establish any genuine issue of material fact and the moving party is entitled to judgment as a matter of law. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” Id.
“MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted.” Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). The trial court and this Court must accept all well-pleaded factual allegations as true, construing them in a light most favorable to the nonmoving party. Maiden, supra at 119. The motion may be granted only “where the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.” Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992).
We also review de novo constitutional issues and any other questions of law that are raised on appeal. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998); Hinojosa v Dep’t of Natural Resources, 263 Mich App 537, 541; 688 NW2d 550 (2004).
I. DOCKET NO. 279020
Easterling and Forner first argue that, in essence, plaintiffs’ claims against them are that they misinterpreted or misapplied the building code, which ultimately led to plaintiffs’ damages. Consequently, they argue, because plaintiffs failed to exhaust their administrative remedies, the trial court lacked subject-matter jurisdiction and plaintiffs’ complaint should have been dismissed in its entirety under MCR 2.116(C)(4). Plaintiffs argue that they are not required to exhaust their administrative remedies to bring a substantive due process claim under 42 USC 1983. Further, plaintiffs contend that they are excused from any requirement of exhaustion of administrative remedies because to do so would have been futile. The CBA would not have been able to award plaintiffs the relief they sought, which was money damages.
We agree with plaintiffs that failing to exhaust administrative remedies does not bar their constitutional substantive due process claim brought pursuant to 42 USC 1983. It may, however, bar a claim for a regulatory taking. See Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 79-83; 445 NW2d 61 (1989), discussing Patsy v Florida Bd of Regents, 457 US 496; 102 S Ct 2557; 73 L Ed 2d 172 (1982), and Williamson Co Regional Planning Comm v Hamilton Bank of Johnson City, 473 US 172; 105 S Ct 3108; 87 L Ed 2d 126 (1985). Also, we conclude that the doctrine of exhaustion of administrative remedies would not deprive the trial court of its jurisdiction with respect to properly filed, viable common-law tort claims, such as fraud or gross negligence. The doctrine of exhaustion of administrative remedies requires that where an administrative agency provides a remedy, a party must seek such relief before petitioning the court. Trever v Sterling Hts, 37 Mich App 594, 596; 195 NW2d 91 (1972). The converse, however, is that where the administrative appellate body cannot provide the relief sought, the doctrine does not apply. Id. at 596-597. Here, plaintiffs assert tort claims against defendants alleging that defendants fraudulently induced plaintiffs to incur unnecessary expenses and that defendants were grossly negligent. Thus, plaintiffs’ argument that the CBA would not have jurisdiction to grant the relief they requested (money damages) has merit.
Easterling and Forner next argue that the trial court erred when it failed to dismiss plaintiffs’ gross negligence claim. They assert entitlement to immunity from tort liability pursuant to MCL 691.1407(2) (c) because their conduct did not amount to gross negligence, and even if it did, it was not the proximate cause of plaintiffs’ damages. Plaintiffs argue they are not required to plead specific facts in avoidance of government immunity because that requirement applies only to claims against governmental bodies, not governmental employees. Plaintiffs assert that the trial court correctly ruled that genuine issues of material fact remain for trial regarding whether Easterling and Forner were grossly negligent by imposing allegedly unwarranted rebuilding requirements after the floods in 2004 and 2005 and whether this gross negligence was the proximate cause of plaintiffs’ injuries.
We conclude that the trial court erred by not granting defendants summary disposition with regard to plaintiffs’ gross negligence claim. Even if Easterling’s and Forner’s interpretation of the building code were grossly negligent, it would not have been “the” proximate cause of plaintiffs’ claimed injuries, i.e., the one most immediate, efficient, and direct cause preceding the injury. MCL 691.1407(2) (c); Robinson v Detroit, 462 Mich 439, 446; 613 NW2d 307 (2000).
Here, plaintiffs have not stated, nor have they argued on appeal, the nature and extent of the alleged duty that Easterling and Forner might have breached so as to render them liable for gross negligence. The governmental immunity statute does not itself create a cause of action called “gross negligence.” Rakowski v Sarb, 269 Mich App 619, 627; 713 NW2d 787 (2006). It is axiomatic that the tort of negligence consists of four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Henry v Dow Chemical Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). “Duty” is a legally recognized obligation to conform to a particular standard of conduct toward another so as to avoid unreasonable risk of harm. Maiden, supra at 131. And, if defendants owed no duty to plaintiffs, plaintiffs’ gross negligence claim is unenforceable as a matter of law. Id. at 135.
“Whether a defendant owes a plaintiff a duty of care is a question of law for the court.” Beaudrie v Henderson, 465 Mich 124, 130; 631 NW2d 308 (2001). A duty of care may arise from a statute, a contractual relationship, or by operation of the common law, which imposes an obligation to use due care or to act so as not to unreasonably endanger other persons or their property. Riddle v McLouth Steel Products Corp, 440 Mich 85, 95; 485 NW2d 676 (1992); Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967). This Court in Rakowski, supra at 629, listed a number of factors pertinent to determining whether to impose a common-law duty:
(1) the relationship of the parties, (2) the foreseeability of the harm, (3) the degree of certainty of injury, (4) the closeness of connection between the conduct and injury, (5) the moral blame attached to the conduct, (6) the policy of preventing future harm, and, (7) finally, the burdens and consequences of imposing a duty and the resulting liability for breach. The inquiry is ultimately a question of fairness involving a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution. [Citations and punctuation omitted.]
The Rakowski Court weighed these factors to conclude that a building inspector did not owe a duty of care to a third party injured by faulty construction the inspector had approved. Id. at 630-635. Here, plaintiffs assume, but do not support with citation of legal authority or argument, that defendants owed them a duty to interpret and apply the building code to impose as little economic effect as possible. But the SSCCA requires that this state’s various building codes balance several factors, including ensuring adequate maintenance of buildings and structures while still adequately protecting the health, safety, and welfare of the people. MCL 125.1504(3) (e). The SSCCA also has the goal of eliminating “restrictive, obsolete, conflicting, and unnecessary construction regulations that tend to increase construction costs unnecessarily . . . .” MCL 125.1504(3)(d). Nothing in the SSCCA, however, suggests that a front-line building official should face future tort liability for not approving building plans that are the least costly to the applicant. Rather, the SSCCA requires that building officials make prompt building code decisions and provide the opportunity for a prompt appeal of a building official’s decision. MCL 125.1511(1) provides: “Failure by an enforcing agency to grant, in whole or in part, or deny an application within [10 or 15 business days] shall be deemed a denial of the application for purposes of authorizing the institution of an appeal to the appropriate board of appeals.” Further, a local building official could face misdemeanor criminal charges if the official “[k]nowingly issues, fails to issue, causes to be issued, or assists in the issuance of a certificate, permit, or license in violation of [the SSCCA] or a rule promulgated under this act or other applicable laws.” MCL 125.1523(l)(g). In light of this statutory scheme, we conclude that fairness is not offended by placing the burden on plaintiffs to appeal perceived economically impracticable and unnecessary building requirements rather than proceed to incur the expenses and later seek redress through costly tort litigation. Recognizing the duty that plaintiffs assume exists would not advance the public interest.
Moreover, even if Easterling’s and Forner’s conduct breached a duty to plaintiffs and the conduct is “gross negligence” as defined by MCL 691.1407(7)(a), plaintiffs cannot establish that such conduct was “the” proximate cause of plaintiffs’ claimed injuries. Simply stated, plaintiffs cannot establish that defendants’ conduct caused them to undertake economically impracticable and unnecessary rebuilding when plaintiffs had alternative courses of action, including (1) choosing not to rebuild (selling their property “as is,” just as they did when the Cumminses purchased the property in a flood-damaged state in 1994), or (2) exercising their right to appeal building code determinations they deemed impracticable or unnecessary. In addition, plaintiffs acknowledge in their complaint that other actors and causes contributed to their financial losses, including a decline in market values. Plaintiffs chose to incur debt far in excess of their property’s preflood value. Further, other factors played a part in plaintiffs’ financial problems and stress, including “lost business revenue ... mortgage costs ... [and] facing foreclosure.” Because other homeowners successfully pursued administrative appeals, plaintiffs cannot establish that Easterling’s and Forner’s interpretation and application of the building code, even if “grossly negligent,” were “the proximate cause,” i.e., “the one most immediate, efficient, and direct cause preceding [their] injury . .. .” Robinson, supra at 446.
Easterling and Forner next argue that the trial court erred when it failed to grant summary disposition with regard to plaintiffs’ fraud claim. We agree. Plaintiffs have failed to plead with particularity the false representations of material fact that either Easterling or Forner made that form the basis of a claim for fraud. MCR 2.112(B)(1); Cooper v Auto Club Ins Ass’n, 481 Mich 399, 414; 751 NW2d 443 (2008). Further, a viable fraud claim may not be inferred, even viewing plaintiffs’ complaint in the light most favorable to them. At most, plaintiffs allege that defendants made intentional, inaccurate statements regarding the law or stated opinions about future events (repair costs), which were not misrepresentations of existing or past facts necessary to support a claim of fraud. So plaintiffs’ complaint fails to state a claim for which relief can be granted. MCR 2.116(C)(8).
Actionable common-law fraud requires proof that “ £(1) the defendant made a material representation; (2) the representation was false; (3) when the defendant made the representation, the defendant knew that it was false, or made it recklessly, without knowledge of its truth as a positive assertion; (4) the defendant made the representation with the intention that the plaintiff would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff suffered damage.’ ” M&D, Inc v McConkey, 231 Mich App 22, 27; 585 NW2d 33 (1998) (citations omitted). Further, an action for fraud must be predicated upon a false statement relating to a past or existing fact; promises regarding the future are contractual and will not support a claim of fraud. Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). Further, to establish a claim of fraudulent misrepresentation, the plaintiff must have reasonably relied on the false representation. Nieves v Bell Industries, Inc, 204 Mich App 459, 464; 517 NW2d 235 (1994). “There can be no fraud where a person has the means to determine that a representation is not true.” Id.
Plaintiffs argue that the gist of their fraud claim is that defendants imposed unrealistic and unwarranted requirements on them when seeking building and occupancy permits after floods damaged their home in 2004 and 2005. Plaintiffs allege that all named defendants “individually, collectively, or with one or more actors, made one or more material representations” as follows:
a. Misrepresented the law insofar as such law pertained to effecting repair on the homeowners’ properties, and Plaintiffs’ in particular,
b. Misrepresented the facts pertaining to the nature and extent of damages to homeowners’ properties, and Plaintiffs’ in particular, as caused by the 2004 and 2005 Floods, and
c. Misrepresented the law and the necessity of taking action to evict homeowners and Plaintiffs in particular and the shutting off of their utilities.
Plaintiffs do not allege with particularity the statements each defendant made that support these conclusory allegations. MCR 2.112(B)(1). Plaintiffs merely refer to unspecified allegations throughout their com plaint. Assuming that the three stated allegations above can be inferred from the whole of plaintiffs’ complaint, it is clear that allegations a and c relate to opinions regarding the applicability of the building code or other legal requirements pertaining to plaintiffs’ flood-damaged property. Allegation c apparently relates to a determination whether the cost of repairing plaintiffs’ home would exceed 50 percent of its fair market value before the flood damage, which would involve the application of flood-resistant building code requirements. See 2003 Michigan Residential Code R105.3.1.1. Thus, viewing plaintiffs’ allegations in the light most favorable to them, we conclude that the alleged false statements are actually legal opinions and statements regarding actions necessary in the future to comply with legal requirements. So, the alleged statements are not false representations concerning an existing or past fact and cannot constitute fraud. Hi-Way Motor Co, supra at 336; see also Michaels v Amway Corp, 206 Mich App 644, 652; 522 NW2d 703 (1994) (alleged misrepresentation of the meaning of a contract term could not constitute fraud because not predicated on a statement of past or existing fact), and Kamalnath v Mercy Mem Hosp Corp, 194 Mich App 543, 554; 487 NW2d 499 (1992) (statements related to future action and to opinion were not actionable as fraud because not predicated on a statement relating to a past or an existing fact).
We acknowledge that some caselaw indicates that “ ‘the mere fact that statements relate to the future will not preclude liability for fraud if the statements were intended to be, and were accepted as, representations of fact, and involved matters peculiarly within the knowledge of the speaker.’ ” Foreman v Foreman, 266 Mich App 132, 143; 701 NW2d 167 (2005), quoting Crook v Ford, 249 Mich 500, 504-505; 229 NW 587 (1930). Both Foreman and Crook are factually distinguishable from the present case. In Crook, the alleged false statements related to the past fact of whether a home had been constructed in a workmanlike manner. Crook, supra at 502. In Foreman, the false statements were made in a divorce case regarding the value of a major marital asset (a car dealership), and the other spouse was not permitted full access to make her own valuation. Foreman, supra at 143-144. The Foreman case also involved the wife’s claim that she was fraudulently induced to enter a property settlement on the basis of the husband’s false statement that he would continue operating the car dealership rather than sell it. Id. at 143-148. There is no claim in the present case that defendants made false promises of future conduct with fraudulent intent upon which plaintiffs detrimentally relied.
Even assuming that defendants either knowingly or recklessly imposed “false” building code requirements, i.e., ones that were not legally required, plaintiffs’ fraud theory still fails because plaintiffs cannot establish reasonable reliance on defendants’ statements. Nieves, supra at 464. Thus, alleged misrepresentations regarding the terms of written documents that are available to the plaintiff cannot support the element of reasonable reliance. Id. at 464-465; Cooper, supra at 414-415. Here, the building code would have been readily available to plaintiffs. “People are presumed to know the law.” Adams Outdoor Advertising v East Lansing (After Remand), 463 Mich 17, 27 n 7; 614 NW2d 634 (2000), citing Mudge v Macomb Co, 458 Mich 87, 109 n 22; 580 NW2d 845 (1998). Likewise, the value of plaintiffs’ home before the flood and the cost of any necessary repairs would be matters at least equally within plaintiffs’ knowledge or their ability to determine. Plaintiffs had equal access to information by which they were “bound to inform themselves of their rights before acting, and, if they fail[ed] to do so, they themselves are responsible for the loss.” Cooper, supra at 415.
Additionally, the element of reasonable reliance is further negated because plaintiffs had ample opportunity to appeal any of Easterling’s and Forner’s building code determinations. The SSCCA provides ample opportunity to an aggrieved party to promptly appeal an adverse decision by a local building code official. MCL 125.1514 requires the creation of a construction board of appeals for each governmental subdivision enforcing the code. When necessary documents are provided to building officials, they must render a decision regarding permit applications within 10 or 15 business days. MCL 125.1511(1). “Failure by an enforcing agency to grant, in whole or in part, or deny an application within these periods of time shall be deemed a denial of the application for purposes of authorizing the institution of an appeal to the appropriate board of appeals.” Id. “If an enforcing agency refuses to grant an application for a building permit, or if the enforcing agency makes any other decision pursuant or related to this act, or the code, an interested person, or the person’s authorized agent, may appeal in writing to the board of appeals.” MCL 125.1514(1). In addition to having the authority to correct any erroneous determination by building officials, the construction board of appeals also has the authority to grant “a specific variance to a substantive requirement of the code if the literal application of the substantive requirement would result in an exceptional, practical difficulty to the applicant,” provided certain conditions are satisfied. MCL 125.1515. Fur ther, an aggrieved party may appeal an adverse decision of the construction board of appeals to the State Construction Code Commission. MCL 125.1516. Beyond administrative appeals, further appeal to the circuit court and to this Court are available. See MCL 125.1517; MCL 125.1518; MCL 24.301. Consequently, plaintiffs cannot establish reasonable reliance on any incorrect building code decision defendants made that would constitute a viable claim for fraud. The trial court erred by not granting defendants’ motion for summary disposition with regard to plaintiffs’ fraud claim.
All defendants argue that the trial court erred by not granting them summary disposition of plaintiffs’ substantive due process claim. We agree. Accepting plaintiffs’ factual allegations as true and construing them in the light most favorable to plaintiffs, we conclude that plaintiffs’ substantive due process claim against all defendants fails as a matter of law. The trial court erred by not granting defendants summary disposition of this claim. MCR 2.116(C)(8).
Both the Fourteenth Amendment of the United States Constitution and Const 1963, art 1, § 17, guarantee that no state shall deprive any person of “life, liberty or property, without due process of law.” People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998). These constitutional provisions guarantee more than procedural fairness and have a substantive component that protects individual liberty and property interests “against ‘ “certain government actions regardless of the fairness of the procedures used to implement them.” ’ ” Id. at 523, quoting Collins v Harker Hts, 503 US 115, 125; 112 S Ct 1061; 117 L Ed 2d 261 (1992), quoting Daniels v Williams, 474 US 327, 331; 106 S Ct 662; 88 L Ed 2d 662 (1986). This state’s constitutional provi sion is coextensive with its federal counterpart. Sierb, supra at 523. “The underlying purpose of substantive due process is to secure the individual from the arbitrary exercise of governmental power.” Id.
In general, the test to determine whether a law or its enforcement violates substantive due process is “whether the law is rationally related to a legitimate governmental purpose.” Electronic Data Systems Corp v Flint Twp, 253 Mich App 538, 549; 656 NW2d 215 (2002); see also Syntex Laboratories v Dep’t of Treasury, 233 Mich App 286, 292; 590 NW2d 612 (1998) (applying the same test to the department’s enforcement decision). In the context of individual governmental actions or actors, however, to establish a substantive due process violation, “the governmental conduct must be so arbitrary and capricious as to shock the conscience.” Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 198; 761 NW2d 293 (2008). In disputes over municipal actions, including the issuance of building permits, only the most egregious official conduct can be considered arbitrary in the constitutional sense. Id. at 197, quoting City of Cuyahoga Falls v Buckeye Community Hope Foundation, 538 US 188, 198-199; 123 S Ct 1389; 155 L Ed 2d 349 (2003), and Sacramento Co v Lewis, 523 US 833, 846; 118 S Ct 1708; 140 L Ed 2d 1043 (1998).
This Court in Mettler Walloon surveyed numerous federal decisions that addressed substantive due process claims in the context of enforcement of land use regulations and concluded, “under federal law, even a violation of state law in the land use planning process does not amount to a federal substantive due process violation.” Mettler Walloon, supra at 203. One of the federal cases the Mettler Walloon Court reviewed was Mongeau v City of Marlborough, 492 F3d 14, 20 (CA 1, 2007), in which the plaintiff, Eugene Mongeau, asserted that city building official Stephen Reid had violated Mongeau’s substantive due process rights in part by “ ‘wrongly charging] or demanding] too much for his building permitThe federal court noted, in essence, that even if this were true, “ ‘[Mongeau] may find recourse in other laws, but not in the substantive component of the Due Process Clause of the Fourteenth Amendment.’ ” Mettler Walloon, supra at 201, quoting Mongeau, supra at 20. Similarly, this Court quoted Koscielski v City of Minneapolis, 435 F3d 898 (CA 8, 2006), in turn quoting Anderson v Douglas Co, 4 F3d 574, 577 (CA 8, 1993), opining that “ ‘[d]ue process claims involving local land use decisions must demonstrate the “government action complained of is truly irrational, that is something more than ... arbitrary, capricious, or in violation of state law.” ’ ” Mettler Walloon, supra at 204. In sum, the “ ‘Due Process Clause “is not a guarantee against incorrect or ill-advised [governmental] decisions.” ’ ” Id. at 206, quoting Collins, supra at 129 (citation omitted).
Here, plaintiffs’ primary allegation against defendants is the strict enforcement of building code provisions requiring flood-resistant construction when plaintiffs claim they should have been allowed to utilize cheaper (and less flood-resistant) rebuilding methods and materials. But even if defendants’ application of the building code to plaintiffs’ circumstance were erroneous, their enforcement of flood-resistant building code requirements still advanced legitimate state interests in protecting the health, safety, and welfare of the public and protected property located in flood-prone areas. Plaintiffs also do not dispute that if the township planned to acquire private property in the flood plain where their home was located for a park and as a flood buffer zone, this too would further a public use that would serve similar legitimate state interests. Indeed, plaintiffs do not contend that the township could not condemn their property for this public use; rather, plaintiffs allege only that the township, through Easterling, Forner, and others, attempted to acquire their property at less than its fair market value, that is, without constitutionally required “just compensation.”
These allegations do not state conscience-shocking conduct. “ ‘To state a cognizable substantive due process claim, the plaintiff must allege “conduct intended to injure in some way unjustifiable by any government interest” and that is “conscience-shocking” in nature.’ ” Mettler Walloon, supra at 201-202, quoting Mitchell v McNeil, 487 F3d 374, 377 (CA 6, 2007), quoting Lewis, supra at 849 (emphasis added). Consequently, even if defendants’ application of the flood-resistant building code requirements to plaintiffs’ situation were erroneous, it still furthered legitimate state interests and, therefore, could not be characterized as conscience-shocking. Plaintiffs’ remedy for an erroneous building code decision is to perfect an administrative appeal or pursue other available legal remedies; plaintiffs’ claim is not one of substantive due process. Mongeau, supra at 20. Even assuming that defendants were motivated to further a township flood-mitigation plan, their subjective motivation does not alter the legal conclusion that applying flood-resistant building code provisions to property situated in a flood plain, which had suffered repeated flood damage over the years, furthered legitimate state interests and therefore is not egregious, conscience-shocking conduct. Mettler Walloon, supra.
Plaintiffs’ allegation that defendants attempted to take private property without just compensation also fails to support their substantive due process claim. First, as the trial court correctly ruled, only a governmental entity may take private property for public use. Second, the township did not, in fact, purchase plaintiffs’ property for less than fair market value. Plaintiffs were not forced “to surrender their property for pennies on the dollar or nothing.” If the township had acquired plaintiffs’ property at less than fair market value other than through a voluntary sale, plaintiffs’ remedy would have arisen under the Fifth Amendment, not the substantive due process component of the Fourteenth Amendment of the United States Constitution, and Const 1963, art 1, § 17. In Lewis, the Supreme Court noted its reluctance “ ‘to expand the concept of substantive due process’ ” so that “ ‘[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’ ” Id. at 842, quoting Albright v Oliver, 510 US 266, 273; 114 S Ct 807; 127 L Ed 2d 114 (1994) (plurality opinion of Rehnquist, C.J.), quoting Graham v Connor, 490 US 386, 395; 109 S Ct 1865; 104 L Ed 2d 443 (1989) (citation omitted). Because claims of permanent or temporary regulatory taking of private property for public use without just compensation come within the protection of the Fifth Amendment, see First English Evangelical Lutheran Church v Los Angeles Co, 482 US 304; 107 S Ct 2378; 96 L Ed 2d 250 (1987) (First English I) (involving the allegation that a flood-plain ordinance denied all use of property near a riverbed), this part of plaintiffs’ claim cannot invoke the Due Process Clause. Lewis, supra at 842.
Plaintiffs have not alleged that defendants conducted themselves so outrageously or arbitrarily as to shock the conscience. Mettler Walloon, supra at 197-213. Rather, plaintiffs allege conduct that furthers legitimate state interests — enforcing the state building code by requiring flood-resistant construction for property situated in a flood-prone area. To the extent plaintiffs allege that defendants erred in their application of the building code, plaintiffs’ remedy was to perfect an appeal or pursue other state remedies. Mongeau, supra at 20. And, to the extent plaintiffs’ complaint alleges an unconstitutional taking, their remedy is not under the substantive due process component of the Fourteenth Amendment; their remedy is under the Taking Clause of the Fifth Amendment. Lewis, supra at 842; First English I, supra. Because plaintiffs have not alleged facts to sustain their substantive due process claim, the trial court erred by not granting defendants summary disposition. MCR 2.116(C)(8).
Finally, we address plaintiffs’ taking claim. Defendant Robinson Township argues that plaintiffs’ taking claim fails because plaintiffs did not exhaust their administrative remedies, the permit process did not entail unreasonable delay, and fluctuations in market value do not constitute a taking of property. Plaintiffs argue that the township’s deliberate course of conduct that reduced the value of their property constituted a de facto taking. Plaintiffs also assert that a regulatory taking occurred under the balancing test of Penn Central Transportation Co v New York City, 438 US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978). Plaintiffs assert that the increase of their debt on their home (which exceeded their equity) to meet building code requirements, the decline in market value of their home, and the township’s improper motivation to acquire their property at less than fair market value establish that a taking occurred. We disagree.
Both the Fifth Amendment of the United States Constitution and Const 1963, art 10, § 2, prohibit the taking of private property for public use without just compensation. Dorman v Clinton Twp, 269 Mich App 638, 645; 714 NW2d 350 (2006). The Taking Clause of the Fifth Amendment “provides in relevant part that ‘private property [shall not] be taken for public use, without just compensation.’ ” First English I, supra at 314. The Taking Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id. at 315 (emphasis added). Thus, the government is not constitutionally prohibited from taking private property for public use but is only required to pay property owners just compensation when it does so. The government normally “takes” private property through the power of eminent domain and formal condemnation proceedings. See Dorman, supra at 645. But a “taking” of private property may occur without formal condemnation proceedings when the government overburdens the property with regulations. Id. In general, “ ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’ ” K & K Constr, Inc v Dep’t of Natural Resources, 456 Mich 570, 576; 575 NW2d 531 (1998) (K & K Constr I), quoting Pennsylvania Coal Co v Mahon, 260 US 393, 415; 43 S Ct 158; 67 L Ed 322 (1922).
The United States Supreme Court recognizes two types of “categorical takings” regarding “regulatory action that generally will be deemed per se takings for Fifth Amendment purposes.” Lingle v Chevron USA Inc, 544 US 528, 538; 125 S Ct 2074; 161 L Ed 2d 876 (2005). “First, where government requires an owner to suffer a permanent physical invasion of her property— however minor — it must provide just compensation.” Id. “A second categorical rule applies to regulations that completely deprive an owner of ‘all economically beneficial us[e]’ of her property.” Id., quoting Lucas v South Carolina Coastal Council, 505 US 1003, 1019; 112 S Ct 2886; 120 L Ed 2d 798 (1992) (emphasis in Lucas). Apart from “these two relatively narrow categories . . . regulatory takings challenges are governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104 [98 S Ct 2646; 57 L Ed 2d 631] (1978).” Lingle, supra at 538. The Court in Penn Central established a balancing test that requires “a reviewing court [to] engage in an ‘ad hoc, factual inquir[y],’ centering on three factors: (1) the character of the government’s action, (2) the economic effect of the regulation on the property, and (3) the extent by which the regulation has interfered with distinct, investment-backed expectations.” K & K Constr I, supra at 577, quoting Penn Central, supra at 124. The “common touchstone” of all taking analyses is “to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” Lingle, supra at 539.
Plaintiffs argue that they have alleged and presented evidence to support a cause of action for a de facto taking. Michigan “recognizes a cause of action, often referred to as an inverse or reverse condemnation suit, for a de facto taking when the state fails to utilize the appropriate legal mechanisms to condemn property for public use.” Peterman v Dep’t of Natural Resources, 446 Mich 177, 187-188; 521 NW2d 499 (1994). A de facto taking “can occur without a physical taking of the property; a diminution in the value of the property or a partial destruction can constitute a ‘taking.’ ” Merkur Steel Supply, Inc v Detroit, 261 Mich App 116, 125; 680 NW2d 485 (2004). No exact formula exists to determine when a de facto taking occurs, but there must be some action by the government expressly directed toward the plaintiffs property that effectively limits the use of the property. Dorman, supra at 645.
Plaintiffs’ de facto taking theory fails because they have neither alleged nor produced any evidence of a causal connection between any deliberate actions of defendants and the decline in the market value of their property. Thus, “a plaintiff alleging inverse condemnation must prove a causal connection between the government’s action and the alleged damages.” Hinojosa, supra at 548. Not only do plaintiffs bear the burden of proving causation in an inverse condemnation action, plaintiffs must also “satisfy this burden by proving that the government’s actions were a substantial cause of the decline of its property.” Merkur, supra at 130. Here, back-to-back devastating floods in 2004 and 2005 damaged plaintiffs’ property. Although the township’s building officials enforced the state building code when plaintiffs decided to rebuild their home following each flood, there is no logical causal relationship between compliance with flood-resistant building requirements and any decline in the fair market value that plaintiffs’ home may have experienced. The mere reduction in the value of regulated property is insufficient by itself to establish that a compensable taking has occurred. Penn Central, supra at 131; Dorman, supra at 647.
Likewise, plaintiffs’ theory that the township and its trustees possessed the subjective intent to acquire plaintiffs’ property for the public’s use as a park and as a flood-buffer zone fails to establish a taking because there is no causal nexus to the market value decline of plaintiffs’ property. The township’s obtaining a FEMA grant after the 2005 flood to provide a mostly federally funded buyout option to flood victims (at 75 percent of preflood damage fair market value) cannot establish a taking because it did not oust plaintiffs from their property or diminish the property’s value. The FEMA grant that was never utilized with respect to plaintiffs’ property simply was not the functional “equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” Lingle, supra at 539. Plaintiffs’ property must in fact be taken to invoke constitutional just compensation.
Plaintiffs also claim that they suffered a “categorical” taking per se, i.e., that defendants’ actions “completely destroyed” their property. Plaintiffs argue that they were required to either abandon their home or rebuild it at costs far exceeding its value, which essentially deprived them of all its economically beneficial use. Quite the contrary, the undisputed facts establish that plaintiffs twice chose to rebuild their home after it was severely damaged by flooding. Because plaintiffs chose to rebuild their home, the township was required to enforce the state building code. This Court has held that a municipality may not be found liable for a taking of private property when it is merely enforcing the requirements of state law. “In order to impose liability on the township, city, or county, the [plaintiffs] must establish that [the] defendants’ regulation caused the taking.” Frenchtown Charter Twp v City of Monroe, 275 Mich App 1, 5-6; 737 NW2d 328 (2007) (emphasis in original).
Further, the fact that plaintiffs incurred debt in excess of their equity to rebuild their home does not establish that the township’s enforcing the state building code was “functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” Lingle, supra at 539. Other than the relatively brief periods that plaintiffs’ home was uninhabitable because it required structural repair or did not meet minimal health and sanitation requirements, defendants never prohibited plaintiffs from using their property for the beneficial residential use plaintiffs desired. For those periods when plaintiffs were unable to occupy their property as a residence, they dispute that a “temporary” taking occurred. Rather, plaintiffs argue that the mere fact that complying with building code requirements resulted in a negative equity denied them all economically beneficial use. This claim is without merit because even with a negative equity, plaintiffs are still able to use their property as a residence, and the property still retains some value even if its market value has declined. The fact that using their property as a residence is more costly in the face of the necessity to repair repeated flood damage does not establish a taking. “The Taking Clause does not guarantee property owners an economic profit from the use of their land.” Paragon Properties Co v City of Novi, 452 Mich 568, 579 n 13; 550 NW2d 772 (1996), citing Sun Oil Co v Madison Hts, 41 Mich App 47, 56; 199 NW2d 525 (1972).
Next, plaintiffs argue that genuine issues of material fact exist regarding their regulatory taking claim. They contend that the township was improperly motivated to apply more costly flood-resistant building code requirements. Defendants argue that because plaintiffs failed to pursue available administrative remedies, their taking claim was not ripe for adjudication, and, therefore, the trial court erred by not granting defendants summary disposition on this claim. We agree.
“[A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Williamson, supra at 186. The rule of finality applies to all constitutional “as applied” challenges to land use regulations and ensures that a plaintiff has suffered an “ ‘actual, concrete injury’ ” Braun v Ann Arbor Charter Twp, 262 Mich App 154, 160-161; 683 NW2d 755 (2004) (citation omitted). Contrary to plaintiffs’ argument, the rule of finality applies even when a plaintiffs constitutional claim is premised under 42 USC 1983. Paragon Properties, supra at 576.
The Williamson Court discussed whether the Court’s decision in Patsy v Florida Bd of Regents, 457 US 496; 102 S Ct 2557; 73 L Ed 2d 172 (1982), holding “there is no requirement that a plaintiff exhaust administrative remedies before bringing a § 1983 action,” affected the rule of finality when asserting a regulatory taking claim. Williamson, supra at 192. The Court observed, “whether administrative remedies must be exhausted is conceptually distinct... from the question whether an administrative action must be final before it is judicially reviewable.” Id. When an administrative appeal would review whether the government’s initial decision was “unlawful or otherwise inappropriate,” the failure to exhaust administrative remedies would not preclude a § 1983 action under Patsy. Id at 193. But where the administrative body is empowered to review the initial agency decision by participating in the decision making regarding the regulation at issue and grant a variance from the regulation’s requirements, the initial decision “is not a final, reviewable decision.” Id. at 194. Thus, Williamson requires that before a claim that the imposition of a regulation to a parcel of property has effected a taking is ripe for adjudication, the claimant must have sought “alternative relief, in the form of variances ....” Paragon Properties, supra at 577.
This Court in Braun, supra at 159, and more recently in Frenchtown Charter Twp, supra at 7, adopted the rule of finality in Palazzolo v Rhode Island, 533 US 606, 620-621; 121 S Ct 2448; 150 L Ed 2d 592 (2001):
Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established.
We conclude that the trial court erred by distinguishing Williamson and its progeny and ruling that the CBA could only review “whether or not the regulations were indeed proper.” The trial court erred because the CBA could not only review and determine whether the township building officials were properly applying the building code, it could also grant variances. MCL 125.1515(1) authorizes the CBA to grant variances from a “substantive requirement of the code if the literal application of the substantive requirement would result in an exceptional, practical difficulty to the applicant,” provided the conditions of that section are complied with. Moreover, the 2003 Michigan Residential Code severely restricts the discretion of building officials with respect to the application of the code to structures in areas prone to flooding “without the granting of a variance ... by the board of appeals.” R104.10.1. The same code also provides criteria for the CBA when considering granting variances in areas prone to flooding. R112.2.2. In sum, while the CBA could review and grant relief if building officials improperly or erroneously applied the code’s requirements, it could also grant variances from the code’s requirements. Thus, under Williamson and its progeny, because plaintiffs failed to “seek alternative relief, in the form of variances,” their taking claim was not ripe for adjudication. Paragon Properties, supra at 577.
We also reject the trial court’s alternative reasoning for not applying the finality doctrine. The trial court reasoned that because the CBA could not award plaintiffs money damages, the plaintiffs’ appeal to the CBA would have been futile. A plaintiff may be excused from the rule of finality if further administrative appeal would be futile. Palazzolo, supra at 625-626; L & L Wine & Liquor Corp v Liquor Control Comm, 274 Mich App 354, 358; 733 NW2d 107 (2007). Plaintiffs, however, made no showing that an appeal to the CBA would have been futile, i.e., that plaintiffs would not have been able to obtain relief from building code requirements they deemed economically impracticable. “Futility will not be presumed; courts assume that the administrative process will properly correct alleged errors.” Id.
The trial court’s reasoning “puts the cart before the horse.” Plaintiffs cannot bring an action for money damages for a taking of property without just compensation until they have obtained a final regulatory decision, including pursuing available remedies for a variance from the regulations they assert caused them harm. Until the government has rendered a final decision regarding the application of a regulation to a particular property, including whether a variance may be granted, it is impossible to determine if a taking has occurred. Paragon Properties, supra at 576-577; Braun, supra at 158-159. The Supreme Court explained in Williamson-.
[A]mong the factors of particular significance in [applying the Penn Central balancing test] Eire the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. Those factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question. [Williamson, supra at 191.]
In sum, under Williamson and its progeny, plaintiffs’ regulatory taking claim was not ripe for adjudication because plaintiffs failed to seek alternative relief from the CBA in the form of variances regarding the alleged economically impracticable building code provisions requiring flood-resistant repair and reconstruction. Paragon Properties, supra at 577. Plaintiffs are not excused from the rule of finality because they have not demonstrated that an appeal to the CBA would have been futile. L & L Wine & Liquor Corp, supra at 358. Consequently, the trial court erred by not granting defendants summaiy disposition on plaintiffs’ taking claim, which was not ripe for judicial review. Frenchtown Charter Twp, supra at 7; Braun, supra at 161.
We reverse and remand in Docket No. 279020 for the entry of an order of summary disposition in favor of all defendants on all of plaintiffs’ claims. Because defendants prevail, they may tax costs pursuant to MCR 7.219.
II. DOCKET NOS. 279064 AND 279088
Plaintiffs in this case assert the same substantive due process claims as the Cumminses did in Docket No. 279020. For the reasons discussed in that case, the trial court erred by not granting all defendants summary disposition on these claims.
Plaintiffs failed to allege or produce any evidence of conduct on the part of defendants that was so outrageous as to be arbitrary, capricious, and so lacking in rational relationship to a legitimate governmental purpose as to shock the conscious. Defendants did not enact “new regulations,” they only interpreted and applied preexisting state building code requirements rationally related to the public’s health, safety, and welfare with respect to structures situated in flood-prone areas. At most, defendants erred in their interpretations of the building code, for which plaintiffs had an administrative remedy.
To the extent plaintiffs claim defendants’ actions “forced” them to sell their property to Robinson Township at below fair market value, plaintiffs’ remedy, if any, is under the Taking Clause of the Fifth Amendment, not the Due Process Clause. But plaintiffs’ taking claim also fails for reasons already discussed. We note that those few plaintiffs that voluntarily sold their flood-damaged properties under the FEMA grant program have waived a just compensation claim.
Plaintiffs in this case, however, also assert that the facts and circumstances establish a compensable temporary taking. See First English I, supra. We conclude that plaintiffs’ temporary regulatory taking claim lacks merit because plaintiffs have neither alleged facts nor produced evidence supporting a claim that extraordinary delay in the permit review process resulted in a temporary taking that required just compensation under the Penn Central balancing test. Indeed, plaintiffs concede that it was not the timeliness of defendant’s decisions but the expense of complying with flood-resistant building code requirements and plaintiffs’ own delay in pursuing hardship appeals that delayed the repair and reoccupation of their homes.
In the seminal case recognizing the concept of a temporary taking, First English I, supra, the Court accepted as true the plaintiffs allegation that a temporary flood-plain ordinance enacted after devastating flooding denied it all use of its camp property near a river. First English I, supra at 313, 321. The flood destroyed all the plaintiffs buildings situated in the flood plain and the county of Los Angeles adopted an interim ordinance barring the construction or reconstruction of any buildings or structures in a designated flood-protection area, which included the plaintiffs property. Id. at 307. The California courts rejected the plaintiffs taking claim on the ground that just compensation could be obtained only prospectively after a judicial determination that the ordinance violated the plaintiffs constitutional rights. Id. at 312. The United States Supreme Court held that once a court has determined that a “taking” has occurred, the Fifth Amendment commands just compensation even though the taking was only temporary. Id. at 316, 321. The Court’s holding was limited: “We merely hold that where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” Id. at 321. The Court further limited its holding by specifically noting that its analysis did not address “the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us.” Id. (emphasis added). On remand, the California Court of Appeal held that the plaintiffs taking claim was properly dismissed because, among other reasons, the county ordinance had not deprived the plaintiff of all use of its property and because the 22-month total moratorium was a reasonable period to permit the county to study the problems associated with development in the flood-prone area and devise “a permanent ordinance which would allow only safe uses and the construction of safe structures in and near the river bed.” First English Evangelical Lutheran Church v Los Angeles Co, 210 Cal App 3d 1353, 1373; 258 Cal Rptr 893 (1989) (First English II).
The Supreme Court rejected a “temporary taking” claim involving a categorical ban on all residential development for a period of 32 months in Tahoe-Sierra Preservation Council, Inc v Tahoe Regional Planning Agency, 535 US 302; 122 S Ct 1465; 152 L Ed 2d 517 (2002). The United States Court of Appeals for the Ninth Circuit had “held that because the regulations had only a temporary impact on [the] petitioners’ fee interest in the properties, no categorical taking had occurred.” Id. at 318. The Supreme Court rejected arguments for a bright-line rule when considering claims of regulatory takings, noting that determining whether a “regulatory taking” has occurred requires the “ad hoc” factual inquiry of the Penn Central balancing test. Id. at 325-327. In doing so, courts must focus not only on “ ‘the parcel as a whole,’ ” id. at 327, quoting Penn Central, supra at 130-131, but also on the temporal dimensions of the owner’s interest. Tahoe-Sierra, supra at 331-332. With respect to the temporal aspects of governmental regulation and property interests, the Court opined:
Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted. Cf. Agins v. City of Tiburon, 447 U.S. [255,] 263, n. 9 [100 S Ct 2138; 65 L Ed 2d 106 (1980)] (“Even if the appellants’ ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are ‘incidents of ownership. They cannot be considered as a “taking” in the constitutional sense’ ” (quoting Danforth v. United States, 308 US 271, 285 [60 S Ct 231; 84 L Ed 240] (1939))). [Id. at 332 (emphasis added).]
The Tahoe-Sierra Court also observed that to require just compensation for “ ‘normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like,’ ” id. at 335, quoting First English I, supra at 321, would affect other temporary regulations “that have long been considered permissible exercises of the police power.” Tahoe-Sierra, supra at 335. “A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmaking.” Id. Tahoe-Sierra teaches “that requiring a governmental agency to compensate a property owner for the loss of value while considering applications for permits and variances under a land-use regulatory scheme would either become cost-prohibitive or lead to governmental agencies making hasty, presumably haphazard, decisions.” K & K Constr, Inc v Dep’t of Environmental Quality, 267 Mich App 523, 536 n 17; 705 NW2d 365 (2005) (K & K Constr II).
Comparing the length of total moratoriums held not to constitute temporary regulatory takings in First English and Tahoe-Sierra, we conclude no extraordinary delay occurred in the permit review process here. Further, requiring plaintiffs to obtain building and occupancy permits cannot itself constitute a taking of property. Bond v Dep’t of Natural Resources, 183 Mich App 225, 231; 454 NW2d 395 (1989), citing United States v Riverside Bayview Homes, Inc, 474 US 121, 126-127; 106 S Ct 455; 88 L Ed 2d 419 (1985). “[T]he very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired.” Id. at 127. Indeed, the essence of plaintiffs’ claim is not that they would not be allowed to use their property for residential purposes but that they had to comply with flood-resistant building code requirements that imposed financial hardship. This claim does not establish a temporary regulatory taking under the Penn Central balancing test.
The Penn Central balancing test requires examining (1) the character of the government’s action, (2) the economic effect of the regulation on the property, and (3) the extent by which the regulation has interfered with distinct, investment-backed expectations. The relevant inquiries regarding the character of the government’s action is whether it singles plaintiffs out to bear the burden for the public good and whether the regulation being challenged “is a comprehensive, broadly based regulatory scheme that burdens and benefits all citizens relatively equally.” K & K Const II, supra at 559. Here, the township enforced the statewide building code and its provisions regarding flood-plain construction that apply equally to all landowners with property similarly situated in flood-prone areas. Thus, plaintiffs are both benefited and burdened like other similarly situated property owners; “this factor weighs heavily against finding that a compensable regulatory taking has occurred here.” Id. at 563.
The economic effect of enforcing the building code requirements for flood-resistant construction also precludes a conclusion that a temporary taking occurred. Plaintiffs’ only claim is that such construction is more costly than construction that is not flood-resistant. But, as noted already, “[t]he Taking Clause does not guarantee property owners an economic profit from the use of their land.” Paragon Properties, supra at 579 n 13. Applying this principle to the present case means that the Taking Clause does not guarantee that a property owner may choose the least costly building materials or methods to repair or rebuild property that has been damaged in a flood. Moreover, plaintiffs who appealed to the CBA obtained relief from the economic hardship the regulations might impose within a reasonable period. This factor does not support finding a temporary taking occurred in this case.
The last Penn Central balancing-test factor examines the extent to which the governmental regulation has interfered with plaintiffs’ distinct, investment-backed expectations. Here, plaintiffs do not assert that their property is used to make a profit; rather, they use their property for residential purposes. Because their homes are situated in a flood plain that experiences frequent flooding, plaintiffs could have no reasonable expectation that their property would not periodically experience flood damage necessitating costly repairs. See Dorman, supra at 648-649 (holding that the plaintiff could not establish that a zoning regulation interfered with “distinct, investment-backed expectations” when the zoning regulation was consistent with the neighborhood and “[a] simple visual inspection of the area would have placed plaintiff on notice that his proposed development was inconsistent with the character of the neighborhood”); see, also, K & K Constr II, supra at 558 (the plaintiffs knowingly purchased regulated wetlands so “it [was] clear that there [had] not been a significant negative effect on [the] plaintiffs’ reasonable investment-backed expectations”) (emphasis in original). Similarly, the application of flood-resistant building code requirements to property situated in a flood-prone area cannot have interfered with plaintiffs’ reasonable “distinct, investment-backed expectations. ”
In sum, plaintiffs’ temporary regulatory taking claim fails as a matter of law because plaintiffs have neither alleged nor produced any evidence that the government extraordinarily delayed its responses and decisions following the flooding that damaged plaintiffs’ homes and rendered them temporarily uninhabitable. Plaintiffs simply have not created a question of fact under the Penn Central balancing test that a temporary taking requiring just compensation occurred. Consequently, the trial court erred by not granting defendant township summary disposition.
We reverse and remand in Docket Nos. 279064 and 279088 for the entry of an order of summary disposition in favor of all defendants on all of plaintiffs’ claims. Because defendants prevail, they may tax costs pursuant to MCR 7.219. We do not retain jurisdiction.
“Fraud in the inducement occurs where a party materially misrepresents future conduct under circumstances in which the assertions may reasonably be expected to be relied upon and are relied upon.” Samuel D Begola Services, Inc v Wild Bros, 210 Mich App 636, 639; 534 NW2d 217 (1995).
Michigan’s Constitution provides: “Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.” Const 1963, art 10, § 2.
The Lingle Court also discussed another type of taking case, not pertinent here, involving the doctrine of unconstitutional conditions— when the government requires a party to give up the constitutional right to receive just compensation for property taken for a public use in exchange for a discretionary benefit that has little or no relationship to the property. Nollan v California Coastal Comm, 483 US 825; 107 S Ct 3141; 97 L Ed 2d 677 (1987); Dolan v City of Tigard, 512 US 374; 114 S Ct 2309; 129 L Ed 2d 304 (1994).
Plaintiffs do not specifically argue or present evidence that those plaintiffs who participated in the FEMA grant program actually received less than fair market value for their property. Fair market value must be determined as of the date the taking occurs. In re Urban Renewal, Elmwood Park Project, 376 Mich 311, 318; 136 NW2d 896 (1965). A taking through the FEMA grant could not have occurred until after the 2005 flood. But, under the grant program, compensation was based on a percentage of fair market value of the property before the flood damaged it. Moreover, plaintiffs could contractually waive their constitutional right to just compensation. See Stone v Michigan, 467 Mich 288, 292; 651 NW2d 64 (2002). | [
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Per Curiam.
Plaintiff appeals by right the custody modification order entered by the trial court following a two-day evidentiary hearing. Plaintiff argues that the trial court failed to enforce the parties’ agreement and the judgment of divorce regarding custody and change of residence, that the trial court erroneously applied MCL 722.31 and MCR 3.211(C) to the instant case, and that the trial court abused its discretion by modifying the custody order. We reverse and remand for further proceedings.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant were married on October 30, 1999, and their only child was born on January 28, 2004. The parties separated on June 24, 2005, and plaintiff filed a complaint for divorce on July 27, 2005. While the divorce was pending, plaintiff and the child resided with plaintiffs parents in Portage, Michigan. During that time, the child attended half-day sessions at day care. Defendant claimed that he frequently picked up the child from day care and took her to day care the following day. Generally, the child spent Tuesdays, Thursdays, and alternate weekends with defendant; however, defendant conceded that there was no regular or consistent parenting time schedule. Additionally, plaintiff frequently traveled out of town or out of the country, often with the child.
The parties ultimately stipulated that “this matter may stand on the pleadings filed herein, without further notice to the defendant, and the court may enter a judgment of divorce so long as it bears defendant’s signature.” The trial court entered the judgment of divorce on February 6, 2006, determining that plaintiff had presented satisfactory proof that the material facts contained in her complaint were true and that there was a breakdown of the marital relationship. In the judgment, the trial court awarded plaintiff sole legal and physical custody of the child and provided that “defendant shall have reasonable parenting time as agreed to by the parties.” The trial court also approved two provisions in the judgment of divorce that indicated that there were no prohibitions against moving the child out of state or more than 100 miles:
It is further ordered that the minor child is currently-domiciled in Michigan. However, the domicile or residence of the minor child can be moved from Michigan without obtaining prior approval of the court so long as the noncustodial parent is aware of the location of the child and is provided with the opportunity for reasonable parenting time with the child.
It is further ordered that, pursuant to MCL 722.31, the prohibition against moving the minor child does not apply to this case, as the plaintiff has sole legal custody of the child.
According to defendant, his parenting time became less regular after June 2006 when plaintiff removed the child from day care. In October 2006, plaintiff and the child moved to Toronto, Ontario, where they resided with plaintiffs new boyfriend. Plaintiff claimed that defendant knew of and acquiesced to her move; however, defendant denied that he knew, indicating that he only learned about the move on April 5, 2007, after pressing plaintiff about his decreased parenting time.
On May 25, 2007, instead of filing a motion for enforcement of, or for specific, parenting time, defendant moved to modify legal custody and to restore his parenting time to what he alleged was the status quo ante. Defendant also moved for an ex parte order prohibiting the removal of the child from the state of Michigan. At the hearing on July 9, 2007, the trial court denied ex parte relief, concluding that defendant had failed to demonstrate specific facts that irreparable injury, loss, or damage would result. The trial court also entered an interim order providing that the child would spend the third weekend of every month, from Thursday to Sunday, with defendant. It further stated that it would hold a hearing:
Specifically we’re going to deal with the issue of economics,[ ] so if you guys don’t have that figured out in terms of support. Also in terms of what we’re going to do from here in terms of visitation, et cetera. I am a very large proponent of having both parents deeply involved in these children’s lives — or this child’s life ....
[I]f he is willing to step up to the plate now and do it, you should embrace that and let him live the words that he says he’s going to do. Because it’s very, very important for you and your child to make that happen, okay? So trust — trust him at his word, let it try to happen and we’ll see where we go from here, all right?
The hearing was scheduled for November 16, 2007. By then the child had been living with plaintiff in Canada for over a year. Before the hearing, the trial court expressed its dissatisfaction with plaintiffs move to Canada, largely because of its experience with another, unidentified case. It took under advisement plaintiffs request that the trial court only address parenting time and the move to Canada. The trial court then proceeded to conduct a full evidentiary hearing on the issue whether an established custodial environment existed, and, after applying the best interest factors of the Child Custody Act, MCL 722.21 et seq., whether the custody provisions of the judgment of divorce should be modified. The trial court did not determine whether plaintiff had met the threshold for changing custody or whether any established custodial environment existed.
At the evidentiary hearing, defendant explained that his parenting time had decreased and that he wanted to return to his previous parenting time schedule. He alleged that plaintiff had frequently denied his parenting time, claiming illness or vacation. Defendant asserted that he “enjoyed parenting time with the minor child consistently every other weekend and every Tuesday and Thursday or, alternately, two other week nights on an overnight basis each week, to the extent that the minor child ended up spending nearly half of her time in defendant’s care.” Defendant believed that plaintiff would relocate to Florida, but because he traveled regularly to Florida, he could still maintain a relationship with his child if she moved. Defendant argued that the parties should be awarded joint legal custody of their child, that the child should not be removed from the state of Michigan without the trial court’s approval or the parties’ agreement, that the parties be prohibited from moving the child more than 100 miles, and that defendant should be awarded parenting time of alternate weekends, two overnight stays a week, alternate holidays, and a “school schedule” under which defendant would have more parenting time during the summer, spring break, and Christmas.
Plaintiff responded that defendant never exercised regular parenting time and that he frequently went several weeks without contacting their child. Plaintiff claimed that “defendant was enjoying his new found bachelorhood and rarely ever inquired as to parenting time with the child.” Plaintiff asserted that she had to initiate contact between defendant and the child. Further, plaintiff claimed that defendant knew that she and the child moved to Canada in October 2006. Plaintiff informed defendant that she planned to enroll in a Toronto university and to work for her father’s business in Canada. Plaintiff resides only six hours from Kalamazoo.
After the hearing, the trial court concluded that the provisions in the judgment of divorce that waived a parent’s rights to a hearing on the child’s removal from Michigan and waived the 100-mile rule were unenforceable. The trial court again expressed concern over plaintiffs move to Canada because it believed that defendant’s ability to exercise parenting time would inappropriately be contingent on plaintiffs cooperation. Further, the trial court found that a de facto joint legal custodial environment existed; thus, “the provisions of MCL 722.31 Section 11(4) must be adhered to.” Finally, the trial court opined that “clear and convincing evidence has been shown that a change in legal custody and specific parenting time is in the best interests of the minor child.” The trial court ordered:
(a) The minor child be returned to Kalamazoo County, Michigan within the next 30 days.
(b) The plaintiff and defendant are awarded joint legal custody.
(c) That the father resume parenting time on alternate weekends from Friday at 5 p.m. until Sunday at 6 p.m. and Tuesday and Thursdays from 3:30 p.m. until 7:00 p.m.; the parties alternate all major holidays, excluding New Year’s, and including Halloween; Memorial Day, and Labor Day, shall be long holiday weekends. The parties will alternate spring break and split Christmas break. Each party shall have two uninterrupted weeks during summer break; the child shall be with plaintiff the first week after school ends and the Thursday preceding the commencement of school. The parties must notify one another, in writing, by April 15, of what two weeks they intend to take for the summer. The balance of the summer vacation shall be on a weekly rotation. The child’s birthday shall be alternated, and the child shall always be with mother on Mother’s Day and the father on Father’s Day.
Plaintiff appeals by right.
II. standards of review
Pursuant to MCL 722.28, “[t]his Court must affirm all custody orders unless the trial court’s findings of fact were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue.” Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). Under the great weight of the evidence standard, this Court should not substitute its judgment on questions of fact unless they clearly preponderate in the opposite direction. Rittershaus v Rittershaus, 273 Mich App 462, 473; 730 NW2d 262 (2007). In a child custody context, “[a]n abuse of discretion exists when the trial court’s decision is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias.” Berger, supra at 705. Clear legal error occurs “[w]hen a court incorrectly chooses, interprets, or applies the law.” Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994). Additionally, we review de novo a trial court’s resolution of issues of law, including the interpretation of statutes and court rules. Hill v L F Transportation, Inc, 277 Mich App 500, 507; 746 NW2d 118 (2008).
This matter also requires us to interpret a statute and a court rule. In interpreting a statute or court rule, we accord every word or phrase of a statute or court rule its plain and ordinary meaning. Spires v Bergman, 276 Mich App 432, 439; 741 NW2d 523 (2007).
IIL MOVING MORE THAN 100 MILES
On appeal, plaintiff first argues that the trial court clearly erred when it failed to honor the language of the judgment of divorce, which awarded plaintiff sole legal custody of the child and also contained a domicile clause, and when it ordered the child be returned to Michigan. While we disagree that the pertinent provisions of the judgment of divorce were enforceable, we agree that the trial court erred in ordering the child be returned to Michigan.
A. APPROVAL OF COURT
MCL 722.31(1) provides in relevant part that “[a] parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.” But MCL 722.31(2) provides:
A parent’s change of a child’s legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4),[ ] permits, the residence change. This section does not apply if the order governing the child’s custody grants sole legal custody to 1 of the child’s parents. [Emphasis added.]
Thus, the plain unambiguous language of the statute provides that a parent with sole legal custody is not restricted in the same manner as a parent with joint legal custody. Parents with joint legal custody must obtain consent from the other parent, or permission from the trial court after a review of certain factors, before moving a child more than 100 miles. Neither consent nor consideration of the factors is necessary when a parent has sole legal custody. Spires, supra at 437-438.
MCR 3.211(C) provides, however:
A judgment or order awarding custody of a minor must provide that
(1) the domicile or residence of the minor may not be moved from Michigan without the approval of the judge who awarded custody or the judge’s successor,
(2) the person awarded custody must promptly notify the friend of the court in writing when the minor is moved to another address, and
(3) a parent whose custody or parenting time of a child is governed by the order shall not change the legal residence of the child except in compliance with section 11 of the Child Custody Act, MCL 722.31.
At first glance, it would appear that the provisions of MCL 722.31 and MCR 3.211(C) conflict. They do not. Simply stated, when a parent with sole legal custody desires to relocate, he or she must first obtain the trial court’s approval, but the factors set forth in D’Onofrio v D’Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976), and codified in MCL 722.31(4) do not apply to the request. Accordingly, pursuant to the court rule, plaintiff was required to obtain court approval of her potential move with the parties’ child to Canada. We note, however, that the trial court tacitly approved the move on July 9, 2007, when it denied defendant’s ex parte request for relief, concluding that defendant had failed to demonstrate specific facts indicating that irreparable injury, loss, or damage would result, and then ordering defendant specific parenting time.
B. JUDGMENT OF DIVORCE WAIVER
Plaintiff argues that the parties waived the approval requirement, so no approval was necessary. Plaintiff claims the issue is one of contract law. But contract law does not govern child custody matters. Phillips v Jordan, 241 Mich App 17, 21; 614 NW2d 183 (2000). More importantly, courts must enforce agreements as written “absent some highly unusual circumstance, such as a contract in violation of law or public policy.” Wilkie v Auto-Owners Ins Co, 469 Mich 41, 51; 664 NW2d 776 (2003). Here, the attempt to contract away the court’s responsibility violated a controlling court rule; consequently, it cannot be enforced. Id.
The provision permitting plaintiff to move without prior court approval clearly contravenes MCR 3.211(C)(1). The plain meaning of “MCR 3.211(C)(1) mandates that custody orders contain language requiring the court to approve a proposed interstate move.” Spires, supra at 439. The provision was not enforceable and should be stricken. The trial court erred in approving it when it entered the judgment of divorce. Even as the child’s sole legal custodian, plaintiff was required to obtain the court’s approval for the proposed change of residence.
With respect to the provision indicating that because plaintiff had sole custody, the prohibition against moving the minor child did not apply, we agree that the provision is a correct statement of the law and was properly included in the judgment of divorce. MCL 722.31; Spires, supra at 437 (“[W]hen the parent seeking the change of domicile has sole legal custody of the child, MCL 722.31 does not apply.”). And the wording of this provision, unlike that in Delamielleure v Belote, 267 Mich App 337, 338; 704 NW2d 746 (2005), does not constitute an express waiver of MCL 722.31; consequently, the provision has no legal effect in this case.
We reject plaintiffs argument that if defendant wanted the waiver provisions removed from the judgment of divorce, he should have moved to set aside or amend the divorce judgment pursuant to MCR 2.611 or MCR 2.612, and that even if defendant had so moved, the motions would have been untimely. We need not review this unpreserved claim of error because plaintiff failed to include the issue in her statement of questions presented. MCR 7.212(C)(5); McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 298; 618 NW2d 98 (2000). Nevertheless, another panel of this Court has previously rejected a similar argument and deemed harmless any error that may have occurred. See Delamielleure, supra at 344. More importantly, “insertion of language mandated by court rule constitutes a correction of an error arising from oversight, which may be corrected at any time, including on the court’s own initiative under MCR 2.612(C)(1).” Id. In the instant case, the challenged provisions were ineffective because the judgment of divorce was required to contain the language of MCR 3.211(C)(1).
C. THE TRIAL COURT’S APPLICATION OF MCL 722.31
Plaintiff argues that the trial court erroneously applied MCL 722.31 to the instant case. We agree. The trial court should have addressed separately the questions whether plaintiff, as sole legal custodian, could move the child to Canada and whether defendant was entitled to a modification of his parenting time or the custody order. Pierron v Pierron, 282 Mich App 222; 765 NW2d 345 (2009). The trial court blurred these issues. Moreover, in its opinion and order, the trial court erroneously concluded that the Michigan Legislature intended the 100-mile rule of MCL 722.31 to apply only to moves within the state and that MCR 3.211(C) explicitly applied to moves out of state. It further concluded that all the factors listed in MCL 722.31(4) must still be considered for moves outside Michigan regardless of which party has legal custody. As previously discussed, the rules of statutory interpretation apply to both court rules and statutes. The court rule and the statute that apply in this case can be read harmoniously, and their plain language cannot be interpreted as distinguishing between interstate and intrastate moves. Any other conclusion violates the rules of statutory construction. Also, the factors listed in MCL 722.31(4) simply do not apply when one party, here plaintiff, has sole legal custody. MCL 722.31(2); Spires, supra at 437. The applicability of the provisions does not hinge on the location of the proposed move. In order to interpret the statute and the court rule as the trial court did, i.e., ruling that the 100-mile rule of MCL 722.31 is inapplicable to moves outside Michigan and applying the change of domicile factors to all moves outside Michigan, this Court would have to “read” provisions and meanings into the statute and the court rule that are not explicitly or patently so worded. We cannot do that. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002).
It was undisputed that the trial court did not grant the parties joint legal custody until its December 17, 2007, opinion and order. If the trial court had done so earlier, it would have been required to comply with MCL 722.31 and to consider the MCL 722.31(4) factors in deciding whether to grant or deny a motion to change domicile. Spires, supra at 444 n 3. Conversely, because there was no joint legal custody at the time of the proceedings, the trial court erred by considering the factors. The trial court clearly erred in its application of MCL 722.31 to the instant case. Fletcher, supra at 881.
D. PLAINTIFF’S MOVE TO CANADA
While the provisions in the judgment of divorce were unenforceable, we cannot fault the plaintiff for not initially seeking the trial court’s approval of her move to Canada. It is well settled that a court only speaks through written judgments and orders. Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977); Stackhouse v Stackhouse, 193 Mich App 437, 439; 484 NW2d 723 (1992). While the trial court itself erred by including the two improper provisions in the judgment of divorce, plaintiff was entitled to rely on them until they were set aside. As we held in Altman v Nelson, 197 Mich App 467, 473; 495 NW2d 826 (1992), “errors or irregularities in the proceedings, however grave, al though they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, do not render the judgment void; until the judgment is set aside, it is valid and binding for all purposes.” The trial court erred by faulting plaintiff for following provisions in a judgment of divorce that the trial court itself, although erroneously, had approved.
We also note that the trial court made significant errors regarding Canadian law simply because it believed that Canadian courts would not enforce its orders. In the event the issue arises on remand, we remind the trial court that Canada is a “state” for the purposes of the Uniform Child-Custody Jurisdiction and Enforcement Act, MCL 722.1101 et seq., see Atchison v Atchison, 256 Mich App 531, 537; 664 NW2d 249 (2003), has been a signatory to the Hague Convention since 1988, and has adopted specific and far-reaching legislation protecting the rights of noncustodial parents, including those who are not Canadian citizens. See generally Overview and Assessment of Approaches to Access Enforcement, Department of Justice, Canada, 2001-FCY-8E. Moreover, to the extent that the trial court was influenced by problems in a different, unidentified case, it erred. Parties to a custody dispute are entitled to individual consideration based on the law and facts applicable to their case, not on anecdotal experiences of the trial court.
IV CHANGE OF CUSTODY
Finally, plaintiff contends on appeal that the trial court abused its discretion by changing the custody provisions in the judgment of divorce. We agree.
The goal of MCL 722.27 is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances. Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001). A trial court may modify a custody award only if the moving party first establishes proper cause or a change in circumstances. MCL 722.27(l)(c); Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003). Accordingly, a party seeking a change in child custody is required, as a threshold matter, to first demonstrate to the trial court either proper cause or a change in circumstances. Killingbeck v Killingbeck, 269 Mich App 132, 146; 711 NW2d 759 (2005). If a party fails to do so, the trial court may not hold a child custody hearing.
This Court has explained the meaning of “proper cause” and “change of circumstances”:
[T]o establish “proper cause” necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being. When a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors.
[I]n order to establish a “change of circumstances,” a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. Again, not just any change will suffice, for over time there will always be some changes in a child’s environment, behavior, and well-being. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. This too will be a determination made on the basis of the facts of each case, with the relevance of the facts presented being gauged by the statutory best interest factors. [Vodvarka, supra at 512-514 (emphasis in original).]
Although the threshold consideration of whether there was proper cause or a change of circumstances might be fact-intensive, and while the court need not conduct an evidentiary hearing on the topic, id. at 512, it must first address this threshold question. Again, in making this determination, a trial court must determine if the moving party has shown “that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.” Id. at 513.
After reviewing the record, we believe that defendant failed to demonstrate a change of circumstances sufficient to warrant an evidentiary hearing. While a change in residence can change a custodial environment, here, the trial court never made the determination that the custodial environment had, in fact, been altered. Not all geographic moves alter a child’s established custodial environment. Brown v Loveman, 260 Mich App 576, 590; 680 NW2d 432 (2004) (“[I]t is possible to have a domicile change that is more than one hundred miles away from the original residence without having a change in the established custodial environment.”); DeGrow v DeGrow, 112 Mich App 260, 267; 315 NW2d 915 (1982) (“The custodial environment was not disturbed by the move from Michigan to Ohio.”); Pierron, supra at 250 (move would not be a substantial barrier to father’s continued parenting time). Again, as stated in Vodvarka, supra at 513-514, “not just any change will suffice, for over time there will always be some changes in a child’s environment, behavior, and well-being. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.”
At the time of the evidentiary hearing, the child had been living with plaintiff in Canada for over a year. Defendant produced no evidence of any kind that this change of residence had any effect on her, let alone a negative effect. There was no attempt to establish, and the trial court did not demand, the requisite showing that the residence change had a “significant effect on the child’s well-being.” Vodvarka, supra at 513 (emphasis in original). According to defendant’s testimony, he was not even aware of the move for approximately six months and still exercised parenting time, although not with the same regularity that he claimed he previously enjoyed. The evidence also established that defendant continued to have a close relationship with his daughter, visited her, and wanted specific parenting time. He was also able to cooperate with plaintiff on issues of child care, e.g., tonsil surgery. With the exception of the move to Canada, plaintiff did not exclude defendant from participating in important decisions affecting the child. In fact, that change of residence was specifically, although wrongfully, permitted by the judgment of divorce. But the remedy for this statutory violation is not a change in custody. At most, defendant’s sole complaint was that he did not have specified parenting time, which the trial court could have addressed at any time upon a properly filed petition. The issue involving defendant’s parenting time was insufficient to show that it had “a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.” Id. at 511.
In short, we can find no sufficient change in circumstances that would have permitted the trial court to revisit the original custody order. Instead, now, because of the trial court’s errors, the child has been uprooted from what no one disputes was a stable environment in Canada with her mother and stepfather. Defendant’s concerns could have been and were allayed with a specific parenting time schedule, Pierron, supra. In fact, we would note that after the trial court finally entered one, there were no disputes over the schedule. The unwarranted and significant changes in the child’s custodial environment were not caused by the parties, but rather inadvertently by the trial court despite its implicit approval of the move when denying defendant’s ex parte motion for the child’s return. The trial court erred by failing to determine whether defendant met the threshold requirement, failed by determining the established custodial environment and whether it had been significantly altered, and erred in its ultimate decision to change the original custodial order.
Accordingly, we reverse the modified custody order and remand for further proceedings. We recognize that during the pendency of this appeal, plaintiff has returned to Michigan, and she and the child may still reside with plaintiffs parents in Portage. Moreover, the child’s established custodial environment may have changed, so any further proceedings must consider these court-ordered changes. But, on remand, we urge the trial court to carefully apply the law to prevent any further unwarranted and disruptive changes unless the most compelling circumstances have first been established. Foskett, supra at 6.
We reverse and remand for further proceedings. We do not retain jurisdiction. As the prevailing party, plaintiff may tax costs pursuant to MCR 7.219.
Plaintiff and her boyfriend are now married.
Defendant was not paying child support, and no order had been entered requiring him to do so.
A party seeking a change in the custody of a child is required, as a threshold matter, to first demonstrate to the trial court either proper cause or a change in circumstances. Killingbeck v Killingbeck, 269 Mich App 132, 146; 711 NW2d 759 (2005).
MCL 722.31(4) provides several criteria to be considered when a court contemplates a change of domicile of over 100 miles, including whether the residence change will improve the quality of life for the child and the relocating parent, the degree to which each parent has complied with or utilized ordered parenting time and whether the motivation for the move is to defeat or frustrate the other parent’s parenting time, whether parenting time for the other parent can be modified to preserve and foster the relationship between the child and both parents, whether the parents are likely to comply with any modifications, whether the requested change is motivated by a desire to secure a financial advantage with respect to support obligations, and any instances of domestic violence.
Apparently recognizing that a strict application of MCL 722.31 would preclude it from considering the factors for a change of domicile as set out in MCL 722.31(4), the trial court proceeded to find that the parties actually had de facto legal custody. Thus, the factors nevertheless had to be considered for that reason, and the trial court had to grant plaintiff permission before she could move the minor child. The trial court’s rulings in regard to this issue were without legal basis and constitute error.
Alternatively, if the moving party succeeds in making this threshold showing, the court must then determine if the child has an established custodial environment with one parent or both. Once the court makes a factual determination regarding the existence of an established custodial environment, which determines the burden of proof to be applied, the court must weigh the statutory best interest factors of MCL 722.23 and make a factual finding regarding each factor in the context of a child custody hearing. Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999).
The trial court never made any determination regarding whether an established custodial environment existed with either party or both parties. “Whether an established custodial environment exists is a question of fact that the trial court must address before it makes a determination regarding the child’s best interests.” Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000). An established custodial environment exists if “over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort,” MCL 722.27(l)(c), and “the relationship between the custodian and the child is marked by qualities of security, stability, and permanence,” Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981). When a trial court fails to make a finding regarding the existence of a custodial environment, this Court will generally remand for such a finding unless sufficient information exists in the record for this Court to make a de novo determination of this issue. See Jack v Jack, 239 Mich App 668, 670; 610 NW2d 231 (2000). Although the trial court never made this determination, sufficient evidence exists in the record to establish that the child had an established custodial environment with plaintiff. Plaintiff had been awarded sole legal and physical custody of the child in the judgment of divorce; the child had always lived with plaintiff and had naturally looked to plaintiff for guidance, discipline, the necessities of life, and parental comfort. Mogle, supra at 197. There is no need to remand for a finding in this regard. Jack, supra. | [
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Borrello, J.
Petitioner, Georgette Mericka, appeals the trial court’s order affirming a decision of a hearing referee of the administrative tribunal for the Department of Human Services that she did not have a developmental disability under MCL 330.1100a(21) and denying her specialty supports and services. We originally denied petitioner leave to appeal. Thereafter, petitioner sought leave to appeal in the Michigan Supreme Court; in lieu of granting leave to appeal, the Supreme Court remanded the matter to this Court “for consideration as on leave granted.” Mericka v Dep’t of Community Health, 482 Mich 996 (2008). For the reasons set forth in this opinion, we reverse.
I. FACTS AND PROCEDURAL HISTORY
Petitioner is a female who is almost 50 years old. She was diagnosed at age 21 with Multifocal Motor Neuropathy (MMN). MMN is a progressive condition for which there is no cure; it is characterized by muscle weakness, muscle wasting, and muscle twitching and cramping. The most current information in the lower court record indicates that petitioner is married and shares a home with her mother and her husband. She is completely dependent on others for assistance with self-care, transfers, repositioning, and mobility. She also requires assistance with tasks such as blowing her nose or wiping away a tear. However, she can occasionally feed herself and drink from a straw when someone else sets it up for her.
It is undisputed that petitioner is mentally and intellectually sound. She is her own guardian and is capable of making her own decisions. She is mentally, but not physically, able to complete all activities of daily living. She earned a Bachelor of Arts degree and works part-time as the director of resource development at the Blue Water Center for Independent Living. Because of her MMN, however, petitioner requires aides and assistive technology to enable her to do her job, and she lacks the stamina to work full-time.
Respondent Michigan Department of Community Health (DCH) operates the “Medicaid Managed Specialty Supports and Services 1915(b)/(c) Waiver Program” to provide supports and services for individuals with developmental disabilities. Petitioner applied to receive benefits as a developmentally disabled person from intervening respondent St. Clair County Community Mental Health (CMH), through its contract agency Thumb Mental Health Alliance. The CMH in turn contracts with the DCH to provide mental health services. The Thumb Mental Health Alliance determined that petitioner was developmentally disabled under MCL 330.1100a(21), and she began receiving § 1915(b) specialty supports and services. She received such benefits for approximately IV2 years.
In April 2006, Dr. Tom Seilheimer, a psychologist with the CMH, performed a second opinion review of petitioner’s file to determine her eligibility to receive § 1915(b) specialty supports and services. Dr. Seilheimer determined that petitioner had substantial functional limitations in the areas of self-care and mobility, MCL 330.1100a(21)(a)(ic)(A) and (D), but that she had no substantial functional limitations in the areas of receptive and expressive language, learning, self-direction, capacity for independent living, and economic self-sufficiency, MCL 330.1100a(21)(a)(ic)(B), (C), (E), (F), and (G). Because he determined that petitioner only had substantial functional limitations in two of the seven areas of major life activity listed in MCL 330.1100a(21)(a)(ic), and the statute requires substantial functional hmitations in three areas to qualify as a developmental disability, Dr. Seilheimer concluded that petitioner was not developmentally disabled and had been receiving § 1915(b) specialty supports and services in error.
Petitioner filed a timely request for review of the CMH’s decision in the administrative tribunal for the DCH. Following a hearing, hearing referee Stephen B. Goldstein reversed the CMH’s determination that petitioner was not developmentally disabled and was not eligible for § 1915(b) specialty supports and services. According to Goldstein, petitioner’s physical impairments resulted in a substantial functional limitation on her capacity for independent living. Because the parties agreed that she satisfied MCL 330.1100a(21)(a)(ic)(A) (self-care) and (D) (mobility), Goldstein ruled that petitioner was developmentally disabled and was eligible for continued § 1915(b) specialty supports and services. In light of his determination that petitioner had substantial functional limitations in three areas of major life activity listed in MCL 330.1100a(21)(a)(ic), Gold-stein did not address whether petitioner was economically self-sufficient under MCL 330.1100a(21)(a)(ic)(G).
Thereafter, the CMH requested and was granted reconsideration of hearing referee Goldstein’s ruling by the administrative tribunal for the Department of Human Services. On reconsideration, hearing referee Martin D. Snider reversed Goldstein’s decision that petitioner was developmentally disabled and was eligible for continued § 1915(b) specialty supports and services. According to Snider, there was sufficient evidence that petitioner possessed the capacity for independent living. Furthermore, Snider ruled that there was sufficient evidence that petitioner did not have a substantial functional limitation in the area of economic self-sufficiency. Thus, Snider ruled that Goldstein erred in determining that petitioner had a developmental disability and was eligible to receive specialty supports and services.
Petitioner appealed Snider’s decision to the St. Clair Circuit Court. The circuit court stated that “[djevelop mental disabilities are disabilities of intellect or behavior” and ruled that Snider’s decision that petitioner possessed the capacity for independent living was both lawful and supported by competent, material, and substantial evidence. The trial court further stated that Snider’s determination that petitioner did not have a substantial functional limitation in the area of economic self-sufficiency was also supported by competent, material, and substantial evidence. Thus, the circuit court affirmed Snider’s decision that petitioner was ineligible to receive § 1915(b) specialty supports and services because she is not developmentally disabled.
II. ANALYSIS
A. STANDARD OF REVIEW
The circuit court reviewed the decision of the administrative tribunal for the Department of Human Services. Judicial review of decisions, findings, rulings, and orders of an administrative officer includes, “as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.” Const 1963, art 6, § 28. Judicial review of an administrative agency’s decision regarding a matter of law is limited to determining whether the decision was authorized by law. Id. Romulus v Dep’t of Environmental Quality, 260 Mich App 54, 64; 678 NW2d 444 (2003).
This Court’s review of a circuit court’s review of an administrative decision is “to determine whether the lower court applied correct legal principles and whether it misapprehended or misapplied the substantial evidence test to the agency’s factual findings, which is essentially a clearly erroneous standard of review.” VanZandt v State Employees’ Retirement Sys, 266 Mich App 579, 585; 701 NW2d 214 (2005). The circuit court’s legal conclusions are reviewed de novo and its findings of fact are reviewed for clear error. Davis v State Employees’ Retirement Bd, 272 Mich App 151, 152; 725 NW2d 56 (2006). “Great deference is accorded to the circuit court’s review of the [administrative] agency’s factual findings”; however, “substantially less deference, if any, is accorded to the circuit court’s determinations on matters of law.” Romulus, supra at 62.
This appeal involves an issue of statutory interpretation. If an administrative agency or trial court interprets a statute, such a determination is a question of law subject to review de novo. DaimlerChrysler Services North America LLC v Dep’t of Treasury, 271 Mich App 625, 631; 723 NW2d 569 (2006).
B. MCL 330.1100a(21)
Petitioner argues that hearing referee Snider erred in determining that she was not entitled to § 1915(b) specialty supports and services and that the circuit court erred in affirming Snider’s decision. Whether petitioner is entitled to receive such support depends on whether she has a developmental disability under MCL 330.1100a(21), which provides, in relevant part:
“Developmental disability” means ... :
(a) If applied to an individual older than 5 years of age, a severe, chronic condition that meets all of the following requirements:
(i) Is attributable to a mental or physical impairment or a combination of mental and physical impairments.
(if) Is manifested before the individual is 22 years old.
(Hi) Is likely to continue indefinitely.
(iu) Results in substantial functional limitations in 3 or more of the following areas of major life activity:
(A) Self-care.
(B) Receptive and expressive language.
(C) Learning.
(D) Mobility.
(E) Self-direction.
(F) Capacity for independent living.
(G) Economic self-sufficiency.
(u) Reflects the individual’s need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated.
The parties agree that petitioner has substantial functional limitations in the areas of self-care and mobility, and that she does not have substantial functional limitations in the areas of receptive and expressive language, learning, and self-direction. Because petitioner must have substantial functional limitations in three or more areas of major life activity to qualify as developmentally disabled under the statute, she must also have a substantial functional limitation in either the area of capacity for independent living or economic self-sufficiency. Both the circuit court and hearing referee Snider determined that petitioner possessed the capacity for independent living because she was mentally capable of living independently. Thus, we must determine whether petitioner, who is mentally, but not physically, able to live independently, has a substantial functional limitation in the area of capacity for independent living. Resolving this issue requires this Court to construe the phrase “[c]apacity for independent living” in MCL 330.1100a(21)(a)(ic)(F).
The primary goal of statutory interpretation is to ascertain and give effect to the Legislature’s intent as expressed by the language of the statute. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). Courts must give effect to every word, phrase, or clause in a statute and avoid an interpretation that renders nugatory or surplusage any part of a statute. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Provisions must be read in the context of the entire statute so as to produce a harmonious result. People v Couzens, 480 Mich 240, 249; 747 NW2d 849 (2008).
In affirming hearing referee Snider’s determination that petitioner possessed the “capacity for independent living” notwithstanding her physical inability to live independently, the trial court essentially imposed a limitation or restriction on the phrase “capacity for independent living” that is not included in the statute itself. The circuit court’s and Snider’s interpretation of the phrase “capacity for independent living” in MCL 330.1100a(21)(a)(ic)(F) precludes an individual who is mentally, but not physically, able to live independently from possessing a substantial functional limitation in the “capacity for independent living” area of major life activity. The error in such a construction is that the Legislature did not so limit the phrase “capacity for independent living.” The word “mental” or “intellectual” does not appear before the provision “capacity for independent living.” The Legislature could have imposed such a limitation, but it did not do so. In construing a statute, this Court will not read anything into clear statutory language that is not within the manifest intent of the Legislature as derived from the words of the statute itself. City of Warren v Detroit, 261 Mich App 165, 169; 680 NW2d 57 (2004). If the Legislature had intended to preclude an individual who is physically, but not mentally, incapable of living independently from being considered as having a substantial functional limitation on his or her “capacity for independent living,” it would have explicitly so indicated by including the term “mental” or “intellectual” before the phrase “capacity for independent living.” We decline to read such a limitation into the statute when the Legislature did not include it in the statute itself. ****
The fact that the Legislature referred to both “mental and physical impairments” in MCL 330.1100a(21)(a)(i) provides further support for the conclusion that an individual who lacks either the mental or physical capacity for independent living has a substantial functional limitation under MCL 330.1100a(21)(a)(iv)(F). The Legislature’s reference to “mental and physical impairments” in MCL 330.1100a(21)(a)(i) shows that the Legislature was cognizant of, and considered the distinction between, mental and physical impairments or capacities. The omission of language from one part of a statute that is included in another part should be construed as intentional. Thompson v Thompson, 261 Mich App 353, 361 n 2; 683 NW2d 250 (2004). The fact that the Legislature chose not to limit the word “capacity” in MCL 330.1100a(21) (a) (iv)(F) by inserting the word “mental” before it, when the Legislature clearly recognized the distinction between mental and physical impairments earlier in the statute, is further evidence that the Legislature did not intend to limit a person’s capacity to live independently to the person’s mental capacity for independent living.
Further support for the conclusion that “capacity for independent living” is not limited to an individual’s mental capacity to live independently is found in the dictionary definition of the term “capacity.” The Legislature did not define the phrase “capacity for independent living” or expressly state whether the phrase encompassed only an individual’s mental or physical capacity for independent living. We give undefined terms their ordinary meanings. Haynes v Neshewat, 477 Mich 29, 36; 729 NW2d 488 (2007). Furthermore, we may consult a dictionary to construe the meaning of an undefined term. Id. Merriam-Webster’s Online Dictionary (2009) defines “capacity” as “an individual’s mental or physical ability[.]” In light of this dictionary definition of the term “capacity,” it is reasonable to construe the phrase “capacity for independent living” to include an individual’s mental or physical capacity for independent living.
In sum, we find that the circuit court erred in construing the phrase “capacity for independent hving” as being limited to an individual’s mental capacity to five independently. Such a narrow construction of the phrase is not supported by the plain language of the statute or the dictionary definition of the word “capacity.” Because the parties agree that petitioner possesses substantial functional limitations in two other areas of major life activities listed in MCL 330.1100a(21)(a)(ic), petitioner is developmentally disabled under MCL 330.1100a(21) and is therefore entitled to § 1915(b) supports and services.
Reversed.
Mericka v Dep’t of Community Health, unpublished order of the Court of Appeals, entered April 3, 2008 (Docket No. 280596).
The § 1915(b) specialty and supports and services program is relevant to the facts of this case and is explained in the order of the hearing referee of the Department of Human Resources as follows:
The Medical Assistance Program is established pursuant to Title XIX of the Social Security Act and is implemented by Title 42 of the Code of Federal Regulations (CFR). It is administered in accordance with state statute, the Social Welfare Act, the Admin istrative Code, and the State Plan under Title XIX of the Social Security Act Medical Assistance Program.
“Title XIX of the Social Security Act, enacted in 1965, authorizes Federal grants to States for medical assistance to low-income persons who are age 65 or over, blind, disabled, or members of families with dependent children or qualified pregnant women or children. The program is jointly financed by the Federal and State governments and administered by States. Within broad Federal rules, each State decides eligible groups, types and range of services, payment levels for services, and administrative and operating procedures. Payments for services are made directly by the State to the individuals or entities that furnish the services.”
42 CFR 430.0
“The State plan is a comprehensive written statement submitted by the agency describing the nature and scope of its Medicaid program and giving assurance that it will be administered in conformity with the specific requirements of title XIX, the regulations in this Chapter and other applicable official issuances of the Department. The State plan contains all information necessary for CMS to determine whether the plan can be approved to serve as a basis for Federal financial participation (FFP) in the State program.”
42 CFR 430.10
Section 1915(b) of the Social Security Act provides:
“The Secretary, to the extent he finds it to be cost-effective and efficient and not inconsistent with the purposes of this subchapter, may waive such requirements of section 1396a of this title (other than subsection (s) of this section) (other than sections 1396a(a)(15), 1396a(bb), and 1396a(a)(10)(A) of this title insofar as it requires provision of the care and services described in section 1396d(a)(2)(C) of this title) as may be necessary for a State... [.]”
The State of Michigan has opted to simultaneously utilize the authorities of the 1915(b) and 1915(c) programs to provide a continuum of services to disabled and/or elderly populations. Under approval from the Centers for Medicare and Medicaid Services (CMS), the Department of Community Health (Department) operates a section 1915(b) Medicaid Managed Specialty Services and Supports program waiver in conjunction with a section 1915(c) Habilitation and Supports Waiver.
The Department’s contract with CMH requires CMH to provide State Medicaid Plan services through the Medicaid Prepaid Specialty Mental Heath and Substance Abuse Services combination 19Í5(b)/(c) waiver to Medicaid beneficiaries who meet the eligibility requirements for Medicaid specialized ambulatory mental health/developmental disability services. [Order of Reconsideration, Department of Human Services hearing referee Martin D. Snider, December 14, 2006, pp 2-3.]
We observe that the testimony of Dr. Tom Seilheimer regarding his definition or interpretation of the phrase “capacity for independent living” is irrelevant to our construction of MCL 330.1100a(21)(a)(iu)(F). This Court’s responsibility in interpreting a statute is to examine and give effect to the language used by the Legislature without regard to our own opinions or the opinions of any other individuals. | [
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Murray, J.
Erie Township, located in the southwest corner of Monroe County, adopted an ordinance that allows for the operation of adult entertainment establishments, but only in the C-2 zoning district, and then only if certain footage requirements are met. Plaintiffs, the owner of land (Jeffrey A. Truckor) and the entity operating an adult entertainment establishment on that land (Alcatraz Industries, Inc.), appeal by right the trial court’s order granting defendants’ motion for summary disposition, denying plaintiffs’ motion for summary disposition and motion for declaratory judgment, and dismissing the case. The discrete constitutional questions presented are whether the township’s regulations “unreasonably limit alternative avenues of communication,” City of Renton v Playtime Theatres, Inc, 475 US 41, 47; 106 S Ct 925; 89 L Ed 2d 29 (1986), or constitute a prior restraint on plaintiffs’ speech. We hold that (1) the township has not suppressed plaintiffs’ “speech,” (2) the ordinance otherwise does not unreasonably limit alternative means of communication, and (3) the ordinance does not constitute an unlawful prior restraint. We therefore affirm the trial court’s order.
I. FACTS AND PROCEEDINGS
Plaintiff Truckor owns a parcel of land on Telegraph Road in Erie Township, on which he operated an adult entertainment business featuring topless dancing from 1992 to 2000. In 2000, Truckor transferred to plaintiff Alcatraz his permits to operate the adult entertainment business. From 2000 through the present, Alcatraz has been operating the adult entertainment business on the Telegraph Road property, which Truckor still owns. In 2003, the township enacted an adult entertainment ordinance, which provides that any adult entertainment establishment must obtain a special use permit, be located on property zoned C-2, and be at least 1,200 feet away from, inter alia, any residential district or residential use.
In particular, § 11.02 allows for the operation of adult entertainment businesses, with subsection A containing the footage requirements and subsection B containing “special performance standards” for signage, lighting, hours of operation, and other particulars. Additionally, under § 5.06 an applicant for a special land use permit — which adult businesses must obtain — must also satisfy the following nine criteria in order to obtain the permit:
1. The project will be harmonious with and in accordance with the Land Use Plan of the Township.
2. The project will be harmonious with and in accordance with the general intent and purposes of this Ordinance.
3. The project will be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such a use will not change the essential character of the area in which it is proposed. In determining whether this requirement has been met, consideration shall be given to:
a. The bulk, placement, and materials of construction of proposed structures.
b. Pedestrian and vehicular circulation.
c. The location of vehicular use or parking areas.
4. The project will not be hazardous to any person or property, or detrimental or disturbing to the public welfare or to existing or reasonably anticipated future uses in the same general vicinity.
5. The project will be served adequately by essential public facilities and services, such as highways, streets, police, fire protection, drainage structures, refuse disposal, water and sewage facilities and schools, and minimize the impact of traffic generated by the proposed development on adjacent properties.
6. The project will not involve uses, activities, processes, materials and equipment or conditions of operation that will be detrimental to any person, property or general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors.
7. The project will not create excessive additional requirements at public cost for public facilities and services.
8. The project shall be in compliance with the site plan approval standards of Section 4.05.
9. The project shall be in compliance with all applicable site development requirements of Article 11 (Standards for Specific Special Land Uses).
Although there are no specific timetables within Article 11 for a decision by the township, under Article 3 of the ordinance, which is the article addressing general administration and enforcement of the ordinance, “all approvals applied for under the Ordinance shall be acted upon in a timely manner.” Specifically, a designated approving body must decide any application no more than 90 days from when the application is deemed complete. Art 3, § 3.08(A)(2). If a public hearing is necessary, it must be held within 60 days of a completed application, and 90 days after the hearing. Art 3, § 3.08(A)(3). Article 11 of the ordinance states that decisions “shall” be made and the planning commission must state its reasons in writing for recom mending approval or denial of an application, with reference to the standards within § 5.06. An appeal from the township board is to the circuit court, but there is no provision within the ordinance to allow an establishment to operate while the administrative and judicial process is underway.
In 2005, Truckor purchased a parcel of property zoned C-2 on Victory Road in the township, the property to which Alcatraz planned to move the Telegraph Road adult entertainment business. The township, however, would not allow plaintiffs to construct an adult entertainment business on the Victory Road property because the property was not at least 1,200 feet from a residential area. Indeed, the township has conceded that because of the footage requirements, there is no current possibility for a new establishment to locate within the C-2 district.
According to plaintiffs, after being informed of this restriction, defendant Paul Mikels, the township supervisor, informed Truckor that he should not apply for a variance on the Victory Road property because it would be denied for lack of hardship. Mikels suggested that Truckor seek an amendment to the zoning ordinance. Thus, on August 29, 2005, Truckor filed a petition to amend the zoning ordinance to change the 1,200-foot restriction to 750 feet, which he believed would enable him to construct the adult entertainment business, provided that he obtain a special use permit as required by the ordinance. The Erie Township Planning Commission held a public hearing on the petition on October 6, 2005.
On November 28, 2005, before the township reached a decision on Truckor’s petition, plaintiffs filed a nine-count complaint against defendants. The crux of plaintiffs’ complaint was that the ordinance violated their right to free speech by removing all channels of communication for adult entertainment businesses and by acting as a prior restraint on free speech. The complaint also contained several tort claims that were based on the invalidity of the ordinance and defendants’ acts under the ordinance.
After defendants first moved for summary disposition, the trial court entered an order staying the proceedings for 90 days to allow the township to complete the decision-making process on Truckor’s petition to amend the ordinance and to allow Truckor to apply for a variance. Thereafter, the Erie Township Board of Trustees denied Truckor’s petition for an amendment, and the Erie Township Zoning Board of Appeals denied his application for a variance.
The trial court subsequently granted defendants’ motion for summary disposition, holding that the ordinance did not violate plaintiffs’ right to freedom of speech as guaranteed by the First Amendment to the United States Constitution. Relevant to the issues on appeal, the trial court ruled that the ordinance did not unreasonably limit alternative avenues of communication:
So the — the—the only significant issue here is whether the township has provided a reasonable alternative avenue for an adult entertainment business.
The Court finds that the township is — has adequately demonstrated that there is an alternative for this expression since the plaintiffs are currently engaged in running an adult entertainment business in Erie Township, because there is in fact other land in the township in which this sort of business could at least potentially be limited — or be — be built. However, I’m — that secondary portion is not necessary for this Court ruling. Therefore, I find that they are not entitled— plaintiffs are not entitled to — to declaratory judgment or summary disposition as to a matter of law as to Counts I through IX but that the defendants are.
Plaintiffs’ complaint was subsequently dismissed, and this appeal followed.
II. ANALYSIS
Plaintiffs first argue that the trial court erred in ruling that the adult entertainment ordinance was constitutional, asserting that the ordinance instead violates their right to freedom of speech as guaranteed by the First Amendment to the United States Constitution. Specifically, plaintiffs argue that the ordinance does not leave open alternative avenues of communication and is a prior restraint on their speech.
This Court reviews de novo the trial court’s decision on a motion for summary disposition. Washington v Sinai Hosp of Greater Detroit, 478 Mich 412, 417; 733 NW2d 755 (2007). When deciding a motion for summary disposition pursuant to MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). A motion brought pursuant to MCR 2.116(C)(10) should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Miller v Purcell, 246 Mich App 244, 246; 631 NW2d 760 (2001).
A. SUPPRESSION OF SPEECH
All ordinances are presumed to be constitutional and are construed to be so unless their unconstitutionality is clearly apparent. Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 259 Mich App 315, 341-342; 675 NW2d 271 (2003). The foundation for this presumption is our recognition that elected officials generally act in a constitutional manner when regulating within their particular sphere of government. Maynard v Bd of Canvassers of the Kent Co First Representative Dist, 84 Mich 228, 256; 47 NW 756 (1890) (Cahill, J., dissenting). The party challenging the ordinance has the burden of rebutting the presumption that the ordinance is constitutional. STC, Inc v Dep’t of Treasury, 257 Mich App 528, 539; 669 NW2d 594 (2003).
Our duty in this case is not to determine whether the activity that occurs inside Alcatraz’s place of business is entitled to First Amendment protection, as that issue —whether correct or not — has been decided long ago. See Jott, Inc v Clinton Charter Twp, 224 Mich App 513, 526; 569 NW2d 841 (1997), citing Barnes v Glen Theatre, Inc, 501 US 560, 565-566; 111 S Ct 2456; 115 L Ed 2d 504 (1991), where it was noted that “[n]onobscene, erotic entertainment, such as topless dancing, is a form of protected expression under the First Amendment, but enjoys less protection than other forms of First Amendment expression, such as political speech.” Additionally, “[t]he use of zoning and licensing ordinances to regulate exhibitions of ‘adult entertainment’ is widely recognized.” Jott, supra at 526.
An ordinance that does not suppress protected forms of sexual expression, but which is designed to combat the undesirable secondary effects of businesses that purvey such activity, is to be reviewed under the standards applicable to content-neutral time, place, and manner regulations. Renton, supra at 49. “ ‘[Cjontentneutral’ time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Id. at 47. See, also, Los Angeles v Alameda Books, Inc, 535 US 425, 433-434; 122 S Ct 1728; 152 L Ed 2d 670 (2002) (opinion by O’Connor, J.).
The parties agree that the challenged ordinance is a content-neutral time, place, and manner regulation. Further, plaintiffs do not contest that the ordinance serves a substantial governmental interest and for good reason. See Young v American Mini Theatres, Inc, 427 US 50, 71; 96 S Ct 2440; 49 L Ed 2d 310 (1976) (a municipality’s “interest in attempting to preserve the quality of urban life is one that must be accorded high respect”).
In light of these admissions, and as noted at the outset of this opinion, the issue in dispute is whether the ordinance unreasonably limits alternative avenues of communication. This is a question of law. Fly Fish, Inc v Cocoa Beach, 337 F3d 1301, 1309 (CA 11, 2003). Toward that end, there is no minimum number of locations, or a minimum percentage of land, that an ordinance must make available for adult entertainment usage. Jott, supra at 533. Each city is obviously unique, often differing significantly from other cities in terms of its character, geography, population, and other circumstances. Id. Because each city presents its own unique set of circumstances, “each case must be decided according to its specific facts.” Id., citing Christy v Ann Arbor, 824 F2d 489, 491 (CA 6, 1987), modification recognized by DLS, Inc v Chattanooga, 107 F3d 403 (CA 6, 1997) (quotation marks omitted). In considering this issue, courts look to the number of lots or buildings available in the district for these establishments, the physical size of the municipality and acreage available for these businesses, the ratio of these establishments per population in the municipality, and the market demand for opening such enterprises. See, e.g., Renton, supra at 53-54; Young, supra at 71; Jott, supra at 529-530; Executive Arts Studio, Inc v Grand Rapids, 391 F3d 783, 797-798 (CA 6, 2004).
We know from our precedents that a community cannot effectively zone out legal businesses. For example, in City of Ferndale v Ealand (On Remand), 92 Mich App 88, 90; 286 NW2d 688 (1979), the city of Ferndale enacted an ordinance allowing for the operation of adult businesses in a C-2 district so long as it was not within 1,000 feet of any residential type dwelling, but allowing for a waiver of the footage requirement under certain circumstances. At the trial held on the plaintiffs equal protection claim, a city building inspec tor testified that no location within the C-2 district met the ordinance requirements. Id. at 90-91. Relying on Young, supra, and Nortown Theatre Inc v Gribbs, 373 F Supp 363, 369-370 (ED Mich, 1974), this Court held the ordinance to be a violation of the equal protection clause because “ ‘the effect of the restriction is an almost total ban on uses conceded by the Defendants to be lawful.’ ” Ealand, supra at 93, quoting Nortown, supra at 369-370. This Court also rejected the city’s argument that the waiver would provide sufficient flexibility to uphold its constitutionality. Ealand, supra at 94.
The present case would be on all fours with Ealand except for two points. First, plaintiffs have not alleged an equal protection claim. Second, and more importantly, plaintiffs are already exercising their First Amendment rights through operation of the existing business. It is the impact of this last point that in large part determines the outcome of this case.
We can initially set aside any dispute about whether we can consider the grandfathered business that Alcatraz currently operates. Though we are unaware of any Michigan authority addressing whether to include grandfathered sites in the “reasonable alternative avenues of communication” analysis, we are persuaded that the most sensible approach is to do so because the grandfathered site is still an operating business within the township. See Boss Capital, Inc v City of Casselberry, 187 F3d 1251, 1254 (CA 11, 1999), abrogated on other grounds by City of Littleton v Z J Gifts D-4, LLC, 541 US 774 (2004) (holding that it was proper to count grandfathered sites when determining whether location restrictions in an ordinance left open reasonable alternative avenues of expression for adult businesses).
And that is where plaintiffs’ case under the First Amendment fails. Remember that, according to Renton, all the government must do in this type of case is “refrain from effectively denying [plaintiffs] a reasonable opportunity to open and operate an adult theatre within the [township].” Renton, supra at 54. This is because, at its core, the First Amendment prevents the government from suppressing speech, see Turner Broadcasting Sys, Inc v FCC, 512 US 622, 641-642; 114 S Ct 2445; 129 L Ed 2d 497 (1994); Texas v Johnson, 491 US 397, 403; 109 S Ct 2533; 105 L Ed 2d 342 (1989), and once it is shown that the plaintiffs’ rights to engage in the protected speech are not infringed, there can be no First Amendment violation. The First Amendment is not violated when the government allows the protected speech to occur, even if not in the desired locale. Renton, supra at 52.
Consequently, courts have repeatedly rejected First Amendment claims in cases like the instant one, where the new zoning ordinance does not reduce the number of adult businesses that operated previous to enactment of the ordinance. See, e.g., Fly Fish, Inc, supra at 1310, where the court held that “[b]y guaranteeing that the number of sites available under a new zoning ordinance is not less than the existing sites, the ordinance does not suppress speech, but merely relocates it, as allowed by Renton.” See, also, Lakeland Lounge of Jackson, Inc v City of Jackson, 973 F2d 1255, 1260 (CA 5, 1992). In a similar vein, one federal district court has recognized that an ordinance does not suppress speech when the plaintiff establishment is currently operating under those regulations. Sands North, Inc v Anchorage, 537 F Supp 2d 1032, 1040 (D Alas, 2007).
In light of these decisions and the undisputed fact that plaintiffs have not been prevented from operating their adult business in the township and are grandfathered in under the new ordinance, we hold that plaintiffs cannot maintain a cause of action under the First Amendment. It is simply impossible to show that the government (the township) has unlawfully suppressed plaintiffs’ speech while the business still operates within the township borders. Id. Absent evidence of even a threat to prevent this business operation, plaintiffs’ claim can only be premised on the location of the operations, and caselaw is clear that the township can reasonably regulate the location of such enterprises.
Even if we had to go further and decide whether the one adult entertainment business already in the township provides a reasonable alternative avenue for protected expression, we would hold that it does. Based on the record presented to the trial court, we know that (1) the township is largely rural and sparsely populated, (2) plaintiffs already operate the one adult entertainment establishment in the township (and in fact, the entire county), (3) based on the township population, there is a 4,850:1 ratio of people to adult entertainment establishments in the township, and (4) there is no other establishment seeking to operate within the township.
Caselaw developed after Renton has concluded that a municipality cannot totally ban adult uses or fail to provide reasonable sites for relocation that are at least sufficient to enable the current adult businesses to remain in business. See DI MA Corp v City of St Cloud, 562 NW2d 312, 321-322 (Minn App, 1997). In order to determine whether there is a sufficient number of available sites, courts look to the number of sites compared with the number of adult businesses currently in existence, or that are seeking to open such a business. Diamond v City of Taft, 215 F3d 1052, 1057 (CA 9, 2000).
Here, the evidence shows that Alcatraz is the only adult business establishment that has ever operated in Erie Township, or that is even seeking to operate in Erie Township. The evidence also shows an acceptable business-population ratio of one business for every 4,850 people. See Executive Arts Studio, Inc v Grand Rapids, 227 F Supp 2d 731, 754 (WD Mich, 2002), aff'd 391 F3d 783 (CA 6, 2004); Univ Books & Videos, Inc v Miami-Dade Co, 132 F Supp 2d 1008, 1015 (SD Fla, 2001). There is simply no dispute that under the ordinance and the township’s decision to grandfather in plaintiffs’ current operations, plaintiffs are fully engaged in their protected speech.
Additionally, it is undisputed that the ordinance does not facially zone out all adult businesses, for it allows the preexisting establishment to operate outside the C-2 district. And as noted, the township has a substantial interest in curtailing the secondary effects of the adult orientated business. For these reasons, we hold that the ordinance does not violate these plaintiffs’ rights to freedom of expression as guaranteed by the First Amendment. See Casanova Entertainment Group, Inc v City of New Rochelle, 375 F Supp 2d 321, 341-342 (SD NY, 2005).
B. PRIOR RESTRAINT
Plaintiffs also maintain a facial attack through which they argue that the ordinance constitutes an unconstitutional prior restraint on speech because it lacks procedural safeguards. The term “prior restraint” is used to describe an administrative or judicial order that forbids certain communications in advance of the time that the communications are to occur, Van Buren Twp v Garter Belt, Inc, 258 Mich App 594, 623; 673 NW2d 111 (2003), and is likewise based upon the First Amendment to the United States Constitution. Plaintiffs argue that under Freedman v Maryland, 380 US 51; 85 S Ct 734; 13 L Ed 2d 649 (1965), and FW/PBS, Inc v City of Dallas, 493 US 215; 110 S Ct 596; 107 L Ed 2d 603 (1990), overruled in part by Littleton, supra at 781, the special use permit ordinance constitutes an unlawful prior restraint on speech because it gives both unbridled discretion to the decision maker and places no limitations on when any administrative decision must be made.
It is certainly true that FW/PBS, in applying two of the three parts of the Freedman test, held that licensing decisions regarding adult establishments must have strict time limits for municipal decisions to avoid any First Amendment free speech infirmities. FW/PBS, supra at 226-227. However, since Thomas v Chicago Park Dist, 534 US 316, 322-323; 122 S Ct 775; 151 L Ed 2d 783 (2002), numerous courts have held that content- neutral ordinances are not subject to Freedman's administrative time limit requirements. For example, in Solantic, LLC v City of Neptune Beach, 410 F3d 1250, 1270 (CA 11, 2005), the court held that “[wjhether a licensing ordinance — which constitutes a prior restraint on speech — must contain a time limit within which to make licensing decisions depends on whether the ordinance is content based or content neutral.” See, also, Covenant Media of South Carolina, LLC v North Charleston, 493 F3d 421, 431-432 (CA 4, 2007).
Assuming the validity of these cases, the issue is whether the ordinance is content based or content neutral. If it is a content-based ordinance, then the time limit requirements under Freedman and FW/PBS apply; if the ordinance is not content based, i.e. it is content neutral, then the time limit requirements do not apply. Id. In this case, because plaintiffs have admitted that the ordinance is content neutral, the holdings of Freedman and FW/PBS are not applicable. Therefore, plaintiffs’ prior restraint argument under the First Amendment free speech clause is without merit under this line of cases.
In any event, even applying Freedman reveals that the special permit provision is not an unconstitutional prior restraint that bestows unbridled discretion on decision makers. The provision sets out a detailed procedure that the Planning Commission and Township Board must follow when they receive and rule on a special use application. The provision also sets out nine standards that must be met, or else the permit “shall be denied.” Additionally, for each step of the decision-making process, the Planning Commission and/or Township Board are directed to review the application for a specific purpose, then the application passes to the next stage of the process (e.g., “the Planning Commission shall review the application ... for completeness,” then “the Planning Commission shall publish a notice of public hearing,” then “the Planning Commission shall recommend approval, denial, or approval with conditions,” then “[u]pon review of the special land use application, all supporting materials, public hearing comments, and the recommendations of the Planning Commission, the Township Board shall deny, approve, or approve with conditions” the application). Additionally, the ordinance contains specific time frames for deciding completed applications, including separate time frames if a public hearing is required. Therefore, the process does not allow unbridled discretion in the handling of an application, and the ordinance does not constitute an unlawful prior restraint on speech.
C. TORT CLAIMS
Finally, plaintiffs argue that the trial court erred in dismissing their claims of interference with business relationships, conspiracy, intentional infliction of emotional distress, and for punitive damages. We disagree.
All of the claims in plaintiffs’ complaint derive from the alleged unconstitutionality of the ordinance. Indeed, plaintiffs acknowledge that they are entitled to reversal only “[i]f the Ordinance is found to be unconstitutional ....” However, we have held that the ordinance is constitutional. Consequently, plaintiffs can sustain none of their claims, and no amount of discovery would change this fact. Accordingly, because the ordinance is constitutional, we affirm the trial court’s dismissal of plaintiffs’ complaint.
Affirmed.
K. F. Kelly, J., concurred.
The individual defendants are involved in the Erie Township government, holding positions such as township trustee, township planning commission member, township supervisor, township clerk, township treasurer, and township attorney.
The record is not entirely clear as to whether plaintiffs want to move the current establishment or desire to operate a second adult entertainment business on Victory Road. At oral argument before this Court, however, plaintiffs’ counsel represented to the Court that plaintiffs wanted to relocate the current business to the Victory Road location.
The First Amendment to the United States Constitution provides as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The “free speech” clause of the Michigan Constitution of 1963 is contained in art 1, § 5, and provides:
Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.
The Michigan and United States constitutions’ free speech clauses “are coterminous.” In re Contempt of Dudzinski, 257 Mich App 96, 100; 667 NW2d 68 (2003). Thus, both the United States Supreme Court and our Court have recognized that nude dancing is not inherently expressive conduct and falls only “within the outer ambit of the First Amendment’s protection.” City of Erie v Pap’s A M, 529 US 277, 289; 120 SCt 1382; 146 L Ed 2d 265 (2000) (opinion by O’Connor, J.). Accord Jott, Inc v Clinton Charter Twp, 224 Mich App 513, 526; 569 NW2d 841 (1997).
For a thorough discussion of the federal caselaw in this area, see Pack Shack, Inc v Howard Co, 377 Md 55, 80-84; 832 A2d 170 (2003).
We disagree with our esteemed dissenting colleague for three reasons. First, as we read plaintiffs’ complaint and brief on appeal, the only facial challenge is relative to the prior restraint issue. Second, that Erie Township is similar in size to Clinton Township tells us nothing about the characteristics of these two townships that are located many miles apart and located in different geographical regions of the state (southeast border of state and northeast of Detroit). Third, and in relation to our second point, we believe it is critical that the record shows that not one other adult business has sought to operate in the township and plaintiffs continue to operate their establishment under the ordinance.
Erie Township is a largely rural community with a population of just under 5,000 people.
Whether the ordinance effectively precludes another establishment opening up within the C-2 district is not necessary to decide, as the facts established in this case reveal that the township has not suppressed plaintiffs’ speech.
For their part, defendants only argued below that plaintiffs’ prior restraint argument should not be considered by the court if it finds that the space regulations do not violate the First Amendment. But, as this opinion makes clear, the “time, place and manner” argument is separate from a prior restraint argument based on the unbridled discretion given to a local decision maker. See Thomas v Chicago Park Dist, 534 US 316, 323-324; 122 S Ct 775; 151 L Ed 2d 783 (2002).
Plaintiffs’ reliance on a passage from 11126 Baltimore Blvd, Inc v Prince George’s Co, 58 F3d 988, 995 (CA 4, 1995), is misplaced, as the United States Court of Appeals for the Fourth Circuit has subsequently stated that that particular passage is no longer good law after Thomas. Covenant Media, supra at 432 n 7.
The trial court did not rely on inadmissible evidence in granting defendants’ motion for summary disposition. First, plaintiffs present no evidence that the challenged facts are false or that the challenged exhibits are inauthentic. Second, and more importantly, even if the evidence were inadmissible, this would not have changed the trial court’s ultimate decision on the constitutionality of the ordinance. The trial court expressly stated that its decision was not based on the challenged evidence. Likewise, our conclusion concerning the constitutionality of the ordinance is not based on the challenged evidence, and a consideration of that evidence is unnecessary to resolve the issues on appeal. | [
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Sharpe, J.
Defendant here reviews his conviction of a violation of the prohibition law by having in his possession 50 gallons of grape wine, alleged to be intoxicating liquor, on exceptions before sentence. His counsel concedes that “the facts are virtually without dispute on either side.” The record discloses that on February 28, 1925, a police officer of the city of Grand Rapids, armed with a search warrant, the legality of which is not questioned, searched the home of the defendant, and found in the basement thereof about 50 gallons of grape wine, which, on analysis, contained 4.9 per cent, of alcohol by volume. The defendant as a witness testified that there was in the basement about 20 gallons of wine; that he made it the preceding October or November by squeezing the juice out of grapes and putting it into barrels; that he put nothing else into the barrels, and that the liquor contained no alcohol. It appears that there was a furnace in the basement, and also that the barrels were placed where the sun could shine upon them a certain part of the day.
At the close of the proofs, defendant’s counsel moved for a directed verdict of not guilty. Error is assigned on the denial of this motion. It was based upon the provision in section 9 of the prohibition act (Act No. 338, Pub. Acts 1917 [Comp. Laws Supp. 1922, § 7079 (9)]), which reads as follows:
“The provisions of this act shall not be construed to prevent the manufacture of cider from fruit, for the purpose of making vinegar, and nonintoxicating cider and fruit juice for use and sale,” etc.
This provision must be considered with sections 2 and 3 of the act, as amended by Act No. 53, Pub. Acts 1919. Section 2 provides that:
“It shall be unlawful for any person * * * to * * * have in possession any vinous, * * * spirituous or intoxicating liquors,” etc.
The phrase “intoxicating liquors” is defined in section 3—
“to include any vinous, * * * fermented .or spirituous liquors, and every other liquor or liquid containing intoxicating properties which is. capable of being used as a beverage, or will produce intoxication, * * * and all 'liquids * * * which contain any alcohol and are capable of being used as a beverage,” etc.
There can be no question but that grape juice may be used as a beverage or that such juice, when fermented so as to contain 4.9 per cent, of alcohol by volume, contains alcoholic properties, and is intoxicating. People v. McCoy, 217 Mich. 575, 577. In People v. Engle, 217 Mich. 334, 340, it was said:
“Nonintoxicating cider consists of sweet cider and also cider in which fermentation has been arrested and further fermentation prevented previous to its becoming an intoxicant. But the act does not stop with the use of the words, ‘nonintoxicating cider/ but also employs the words ‘and fruit juice/ And this means, beyond all question, sweet cider.
“Fruit juice or sweet cider may be made and sold and used as a beverage without treatment to prevent fermentation. If new cider purchased while sweet ferments and becomes intoxicating the risk of having the sáme, except for vinegar, falls upon the possessor.”
The defendant had a right to manufacture the fruit juice. But, when he kept it in his possession for use as a beverage after it fermented and became intoxicating, he violated the law.
Error is assigned upon the admission in evidence-of a sample bottle of the wine, for the reason that Officer Coe, then on the stand, had not himself taken it from the barrel or' seen it taken therefrom. Office!* Spoelstra afterwards testified that he “took a sample out of the large barrel” and “handed it to Coe.” The error complained of was thus effectually cured and could not have resulted in prejudice to the defendant.
Other errors as to the admission of testimony and the instructions given the jury have been considered, and in our opinion are without merit.
The exceptions are overruled. The trial court will proceed to sentence.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Stake, C. J.
This case involves tbe question of whether or not certain attorneys’ fees and expenses incurred by Louis G. Palmer were properly chargeable against the estate of J. Hazel Gilmore Davis, deceased.
Said J. Hazel Gilmore Davis died September 23, 1932, leaving a will in which she made specific bequests to her sister, Lyda Palmer Ridge, her brother, Louis G. Palmer, and other named legatees. The will designated her husband as executor, but he declined to act, and on December 5, 1932, said Louis G. Palmer was appointed administrator with will annexed by the probate court for Wayne county. The principal assets in the estate were several parcels of real estate, which were subject to mortgages or delinquent taxes. Among the assets was the property located at 18-22% Washington street in the city of Ypsilanti, Washtenaw county. It was subject to a mortgage to the Detroit Trust Company, on which there was a balance due of $9,233.30. This mortgage together with other mortgages, had been pledged by the trust company as ■security for an issue of its series “S” participation certificates.
At the time of his appointment as administrator of the Davis estate, Palmer was acting as trustee under an inter vivos trust created by his wife for the benefit of herself and their son, John Palmer. The Davis estate ivas apparently without funds to pay the mortgage on the Ypsilanti property. Acting through one Herbert Cole, Palmer, as trustee of his wife’s trust, purchased the mortgage on this property from the Detroit Trust Company. He paid the trust company the balance due of $9,233.30 by surrendering certain of its series “ S ” participation, certificates which he, as trustee and with trust funds, had acquired at a cost- of $6,270. The gain or profit on this transaction was $2,963.30, the difference between the balance due on the mortgage and the cost of the participation certificates. On October 5/ 1934, the trust company assigned the mortgage to Cole, and on October 6th Cole assigned it to Palmer, as trustee.
Prior to the time he purchased the mortgage, Palmer, as administrator, filed petition in probate court for authority to sell the Ypsilanti property at private sale. An order was entered August 22, 1934, authorizing him to sell it for $1,500, which represented the appraised value over and above the mortgage indebtedness. On October 18, 1934, he filed'a report stating that he had sold the property to one Minnie Gardner for $1,500, and an order was entered confirming the sale. The record shows that Palmer, as trustee, had loaned Minnie Gardner the $1,500 with which to make the purchase. As trustee, he also loaned her further sums of money with which to repair and improve the store buildings on the property. Minnie Gardner held title for about nine months and then conveyed the property to Palmer, as trustee.- He has since continued to hold title to the property and has improved it and collected the rents. In the latter part of 1935 Palmer, as administrator, filed a report in probate court covering the period from August 11,1934, to November 1,1935. In this report he showed the receipt of $1,500 from the sale of the Ypsilanti property, but he did not show the above-mentioned profit of $2,963.30 realized by him, as trustee, in purchasing the mortgage from the trust company.
Several years later, in July, 1939, Palmer’s sister, Lyda Palmer Ridge, and certain other beneficiaries under the Davis will, filed bill of complaint in the circuit court for Washtenaw county against Palmer, individually and as trustee for his wife and son, and as administrator of the Davis estate. They alleged that by acquiring title to the Ypsilanti property as trustee, Palmer had perpetrated a fraud upon the Davis estate. They asked for an accounting and that Palmer be required to transfer the property to the estate. He answered, denying the charge of fraud and alleging in substance that his acquisition of the property as trustee was regular and proper. He denied that plaintiffs were entitled to any relief. The case was tried, and the court’s opinion determined that Palmer was not guilty of the fraud charged, but that he, as trustee, was liable to the Davis estate for the above-mentioned profit of $2,963.30. A decree was entered which provided in part:
“1. That Louis G. Palmer, as trustee for Grace S. Palmer and John C. Palmer, is liable and indebted to the estate of J. Hazel Gilmore Davis, deceased, in the sum of $2,963.30, without interest.
“2. That any and all transactions of Louis G. Palmer, as administrator of the estate of J. Hazel Gilmore Davis, deceased, or as trustee for Grace S. Palmer and John C. Palmer, or individually, with reference to (the Ypsilanti) property * * * were in each instance entered into in good faith, and were not had or made in fraud of the rights of plaintiffs to this action or in fraud of the estate of J. Hazel Gilmore Davis, deceased.
“3. That the sale of the property above described by Louis G. Palmer, as administrator * * * to Minnie Gardner, * * * and the subsequent repurchase by Louis G. Palmer, as trustee for Grace S. Palmer and John 0. Palmer, was in good faith and for a valuable consideration and was not had or made in fraud of the rights of plaintiffs to this action./ ’
No appeal was taken from the above decree, and it stands as a final adjudication of the rights of the parties to the Ypsilanti property. The record indicates that in pursuance of. the decree, Palmer paid to himself, as administrator of the Davis estate, the sum of $2,963.30.
We now come to the principal matter in controversy in the present case. At the time Lyda Palmer Ridge and other beneficiaries began the suit in Washtenaw county, Palmer employed Detroit and Ann Arbor attorneys, who represented him throughout that litigation. He did not at that time petition for or obtain authority from the probate court to employ said attorneys. The case was tried in October, 1940, and the above-mentioned decree was entered in July, 1941. After the trial, but prior to the entry of decree, Palmer, as administrator, petitioned the probate court for authority to employ the Detroit and Ann Arbor attorneys to represent him in the Washtenaw county litigation.- In January, 1941, an order was entered authorizing him to employ said attorneys and further providing that their employment “is hereby confirmed.” After the conclusion of the suit, the attorneys rendered Palmer bills for their expenses and services in the aggregate amount of $2,972.95. He paid these bills and reported the payment in his “supplemental & amended final account” as administrator filed March 18, 1943. Lyda Palmer Ridge and other-beneficiaries under the Davis will filed objections to the allowance of Palmer’s final account, on the ground that the attorneys’ fees and expenses incurred by him in connection with the Washtenaw county suit were not properly chargeable against the Davis estate. In March, 1943, an order was entered in prohate court allowing the final account and the above-mentioned attorney fees. Lyda Palmer Eidge and other beneficiaries appealed to the circuit court for Wayne county. In his opinion reversing the probate court and disallowing the attorneys.’ fees and expenses, the circuit judge stated in part:
“It appears that on December 7, 1935, the administrator (Palmer) filed an account in the probate court in which he sets forth as a receipt the $1,500 obtained from the sale of said property to Minnie Gardner. Other accounts were filed from time to time, but no accounting or mention was made of the sum of $2,963.30 until after the decision in the Washtenaw county circuit court.
“It appears that neither the probate court nor the heirs were ever informed by the administrator that he as trustee for his wife and stepson had acquired the mortgage from the Detroit Trust Company at a discount of $2,963.30.
“When the heirs discovered this transaction the suit in the Washtenaw county circuit court was instituted. Up to the time of the trial and during the trial the administrator never offered to account for the said sum of $2,963.30, in fact, in his answer he denied that Herbert S. Cole was acting as his agent in this matter.
“Counsel for the administrator insists that this court must accept the findings of the Washtenaw county circuit court that the administrator was acting in good faith and was not guilty in any way of any fraud upon the rights of the heirs of the estate of J. Hazel Gilmore Davis, deceased, but I must also accept the findings of the court that the administrator (Palmer) was liable to the (Davis) estate in the sum of $2,963.30. * * *
“Under the record presented in this case this court is asked to decide whether or not attorney fees incurred in defending an administrator against a claim that he owes money to an estate, which he denies, is a proper charge against the estate, the court having found that he owes the money.
“While it is true that the court found the administrator was blameless of all the other charges alleged in the bill of complaint, still I am of the opinion that having found him -liable on one of them his attorney fees are not a proper charge against the estate of J. Hazel Gilmore Davis.
“To hold otherwise would be in effect to nullify the decree of the Washtenaw county circuit court. The heirs, being the real parties in interest, having obtained a decree against the administrator giving them $2,963.30, would be required to pay out to the administrator’s attorneys $2,972.95.”
Palmer appeals from a-judgment, disallowing the attorneys’ fees and expenses in question. He argues that because fraud was alleged and relief sought against him only in his capacity as administrator, the expense he incurred in defending himself was properly chargeable against the Davis estate. Defendants, contend that the attorneys ’ fees a'nd expenses should not be charged against the estate, because the attorneys’ services were not for the benefit of the estate. They argue that Palmer was sued in three capacities, as an individual, as trustee of his wife’s trust, and as administrator of the Davis estate, and that the chancery decree directing him, as trustee, to pay the estate the sum of $2,963.30 established "a violation of his duties as administrator.
The bill of complaint in effect charged Palmer, individually and as trustee, with perpetrating a fraud upon the estate, in violation of his duties as administrator. He employed the attorneys to defend him in the three capacities in which he was sued. Lyda Palmer Bidge and other beneficiaries failed to establish, their charge .of fraud, but the chancery decree determined that Palmer, as trustee, was indebted to the Davis estate for the gain or profit of $2,963.30 realized through the purchase of the mortgage from the Detroit Trust Company.
The record is clear that Palmer, individually and as trustee, voluntarily involved himself in a complicated situation regarding the Ypsilanti property. He was under no obligation or duty, as an individual or as a trustee, to advance funds in connection with the purchase of the mortgage from the trust company. Although his intentions may have been good and for the benefit of the estate, yet he unnecessarily created a situation which justified the beneficiaries under the Davis will in questioning his motives and conduct as an individual, as trustee, and as administrator. If he had proceeded with his duties as administrator in the usual and proper manner and not involved himself as an individual and as trustee, the Washtenaw county litigation would not have arisen, and the attorneys’ services would not have been necessary. He voluntarily went outside his duties as administrator and involved himself in a situation which resulted in litigation. We find no evidence indicating that he admitted or recognized his liability to the Davis estate for the profit on the mortgage transaction, prior to the entry of the chancery decree determining that he was liable for such profit.
Our examination of the record convinces us that the attorneys’ fees in question were not incurred for the benefit of the Davis estate but were incurred by Palmer in defending himself in his three capacities against the charges of fraud and wrongdoing. Under the facts and circumstances shown, it would be impossible to allocate the attorneys’ fees and expenses properly between Palmer, individually, as trustee, and as administrator. The trial court properly determined that the attorneys’ fees and expenses should not be charged against the Davis estate. Stover v. Wayne Probate Judge, 219 Mich. 566; Sprague v. Moore, 136 Mich. 426. Other ques: tions presented have been considered but do not require determination.
. The judgment for defendants is affirmed. The case is remanded to the circuit court for subsequent remand to the probate court for further proceedings in the Davis estate. Defendants may recover the costs of this court.
North, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this ease. | [
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Reid, J.
Plaintiff files his petition for mandamus against the defendant circuit judge to require the circuit judge to sign an order correcting a marriage record.
Plaintiff was born in a foreign country and was christened Andón Pandob. He was made a citizen of the United States in a naturalization proceeding on March 5, 1928, contemporaneously with which he adopted, with the consent of the naturalization authorities, the name of Thomas Morson, by which name he has been known and designated ever since. In the summer, of 1934 he became engaged to marry his present wife, whose name was Mildred Sterff. Both plaintiff Morson and his wife are members of the Greek Orthodox church. Plaintiff was given to understand that the rules of that church required that the license should identify plaintiff as Andón Pandob, by which name he had been christened, instead of the name of Thomas Morson, plaintiff’s lawfully adopted name. In applying for his marriage license on October 25, 1934, plaintiff set forth his name as Andón Pandob without any reference to the name of Thomas Morson. Plaintiff says that he has since discovered that the church regulations do not require the use of the name by which he was christened. There is a child of the marriage who is now of school age. Plaintiff further says that the name Morson is the only surname ever used by his wife since their marriage and the only surname used by their child.
Upon testimony being offered on the hearing before the circuit judge of the facts as above set forth, the circuit judge declined to make the order petitioned for, and in his answer says, “Defendant denies that such nondiscretionary requirement has legal existence in the State of Michigan.”
We are of the opinion that the circuit court in chancery because of its broad powers has jurisdiction in a proper proceeding to make an order such as is sought in the instant casé, However since the wife of the petitioner is fully as much interested as the petitioner himself in the marriage record which is sought to be corrected, she should have been made a party to the proceedings. This could have been accomplished by the wife joining in the petition for the relief sought, or if she is unwilling to join in. making the petition she should be made a party defendant in the proceedings. In the latter event she should be served with notice of the proceedings and unless she appears therein proof of such service should be made. As we understand this record, at the hearing in the circuit court the circuit judge indicated to counsel for petitioner that the relief sought could not be granted ex parte, but instead the wife should be made a party to'the proceedings. Counsel for petitioner did not comply with this suggestion or direction of the trial court; and it was for that reason the petition was dismissed. Under such circumstances we decline to issue the writ of mandamus.
The practice in this kind of proceedings in this jurisdiction is quite without precedent; and we are therefore constrained to remand the proceedings to the circuit court in chancery for Monroe county and afford the petitioner an opportunity to amend the proceedings in the manner hereinbefore indicated. Thereupon, if the testimony is sufficient, the order sought by petitioner should be made with provision that a certified copy thereof be placed in the marriage record of petitioner, such order to determine the identity of plaintiff as the person whose name now appears in the marriage record as Andón Pan-dob. The instant proceedings being a matter of public interest, no costs are awarded.
Starr, C. J., and North, Butzel, Bushnell, Sharpe, and Boyles, JJ., concurred. The late Justice Wiest took no part in the decision of this case. | [
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Starr, C. J.
The defendant, Daily Creamery Company, is a Michigan corporation with its principal place of business in the city of Hamtramck. In October, 1939, the holders of 203 shares, being a majority in par value amount of the capital stock of the company, executed a voting-trust agreement, whereby they constituted three designated persons as voting trustees of their stock for the period of 10 years. The agreement provided in part:
“We do hereby make such deposit (of shares of stock) with said trustees for the sole purpose of vesting in them the right to vote thereon, for and in our behalf, and in our place and stead, at any time hereafter from the date of the execution of this agreement and to continue to October 2, 1949; it being expressly understood that the manner of such voting shall be in the sole and absolute discretion of said trustees.
“This agreement shall be irrevocable for the aforementioned period. * * *
“Further, this agreement is executed in compliance with the corporation code of the State of Michigan, * * * section 34, * * * and this agreement is intended to be governed thereby.”
The stockholders who executed the agreement assigned their stock certificates to the voting trustees, and in April, 1940, a certificate for 203 shares of stock was issued in the names of the trustees. Directors were elected at a stockholders’ meeting in December, 1939. The directors elected officers and employed one TJlatowski as manager, who has continued in that capacity. No stockholders’ meetings were held after 1940, although it appears that directors’ meetings were held from time to time.
Trouble, arose regarding the management of the business, and in September, 1941, 28 stockholders filed bill of complaint against the company and the 12 stockholders who had signed the voting-trust agreement. Subsequently, 7 of the individual defendants withdrew, and an order was entered permitting them to join as. parties plaintiff in an amended bill of complaint. In their bill and amended and supplemental bills plaintiffs alleged that the voting-trust agreement was invalid; that the voting trustees and officers and directors had mismanaged the business; that the agreement had resulted in dissension and trouble among stockholders; and that defendants were conspiring to wreck the company. They asked, among other things, for an accounting;- that the voting-trust agreement be declared void; and that a receiver be appointed. Defendants answered, denying the material allegations of the bill and amendments and plaintiffs’ right to the relief sought. Testimony was 'taken, and a decree was entered canceling the voting-trust agreement on the ground that its cancellation was for “the best interests of all the stockholders.” The decree also dismissed the bill as to the company and denied the appointment of a receiver.
Defendants appeal, contending that the court erred in canceling the agreement. Plaintiffs cross-appeal, claiming that the court erred in not finding that the resignation of one of the voting trustees operated as a dissolution of the voting trust. There was no appeal from the dismissal of the bill as to the creamery company or from the refusal to appoint a receiver. This being a chancery case, we review de novo. In his opinion the trial court said in part:
“Upon the pleadings and proofs in this case, a situation is not presented which calls for the appointment of a * * * receiver. This corporation is not insolvent. * * *
“The proofs offered and received do not establish that the voting trust is null and void. On the other hand, they do establish that the voting trust is, and was at the time it was entered into and executed, a valid instrument under the law of this State. * * *
“The plaintiffs, in their bill of complaint, allege fraud and conspiracy. The proofs do not sustain the allegations of fraud and conspiracy as alleged. # =» #
“While I think it may be fairly said that there was a majority who desired that the voting trust be continued for its duration of ten years, there were three, possibly, or four, who indicated that they thought the voting trust should be terminated. * * *
“They (plaintiffs) haven’t made out any case establishing that there . was anything invalid or fraudulent in the conduct of the trustees under the voting trust agreement, nor of the board of di- ■ jj. jb • rectors. *
“The court is of the belief, from the proofs in this case, that a termination of this voting trust agreement is in the best interests of all the stockholders and of this defendant corporation itself.”
The record is principally composed of conflicting and confusing testimony relative to the effect of the voting-trust agreement. Some stockholders, including Walenty Niedbala, who had resigned as a voting trustee during the pendency of the suit, testified that the agreement had resulted in dissension and trouble and in the mismanagement of the business. Other stockholders testified that the agreement had resulted in more harmony and in better management. After reading the record we agree with the trial court, who said: “This is just a quarrel over the matter of power and authority.” In any event, the record indicates that at the time of the trial, the company was doing a substantial business and was not insolvent.
Plaintiffs alleged fraud and misrepresentation on the part of the individual defendants in inducing certain stockholders to execute the voting-trust agreement. The trial court held there was no proof of fraud, and the record sustains that finding.
It reasonably appears that the voting-trust agreement was-promoted by certain-stockholders in an effort to avoid trouble and dissension over the control and management of the company. There was substantial compliance with the statute in the execution of the agreement and the issuance of stock to the voting trustees. We agree with the trial court that the agreement was valid. See authorities cited, 105 A. L. R. 102-148; Wilgus & Hamilton, Michigan General Corporation Act, pp. 260-272; 5 Fletcher, Cyclopedia Corporations (Perm. Ed.), pp. 264-334, §§2075-2095.
The owners of a majority of the capital stock apparently executed the agreement in good faith and for the accomplishment of a lawful purpose. Mere dissension, dissatisfaction, and lack of harmony over questions of policy and management do not justify its cancellation. We find no evidence of fraud or misconduct by the voting trustees or directors or officers that would justify the cancellation of the agreement. The trial court’s finding that the termination of the voting trust was for the best interests of stockholders does not alone justify cancellation. The case of Rytkonen v. Butler, 305 Mich. 580, cited by plaintiffs and cross appellants, has no bearing on the questions before us, because in that case all parties agreed that the corporation should be dissolved, and the only question was whether the dissolution should be by the corporation or by a receiver.
The resignation of one of the voting trustees did not operate as a dissolution of the voting trust, because the above-cited statute provides that “the right to vote said shares and the manner of voting the same * * # shall be determined by a majority of said trustees.” The remaining trustees, being a majority, could continue to vote the stock held by them.
We find no evidence justifying cancellation of the voting-trust agreement. The decree of the trial court canceling the agreement is set aside, and a decree may be entered in this court dismissing plaintiffs’ bill and amended and supplemental bills. Defendants may recover costs of both courts.
North, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case.
Act No. 327, § 34, Pub. Acts 1931, as last amended by Act No. 34, Pub. Acts 1934 (1st Ex. Sess.) (Comp. Laws Supp. 1940. § 10135-34, Stat. Ann. § 21.34). | [
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Wiest, J.
This is an appeal by defendant from a decree requiring it to surrender to the receiver of the Peoples State Bank of Sheridan certain mortgages, assigned to it on September 26,1931, in violation of 3 Comp. Laws 1929, § 11946. That section is a part of the general banking act and provides:
“All transfers of notes, bonds, bills of exchange or other evidences of debt owing to any bank, or of deposits to its credit, all assignments of mortgages, or other security on real estate or judgments or decrees in its favor, or deposits of money, bills or other valuable things for its use, or for the use of its stockholders or creditors, all payments of money, either after the commission of an act of insolvency or in contemplation thereof, with a view to prevent application of its assets in the manner prescribed in this act, or with a view to the preference of one creditor over another, shall be held to be null and .void.”
The Ancient Order of Gleaners had $5,000 on deposit in the Peoples State Bank, evidenced by certificate of deposit, and secured by surety bond of $2,500.
September 26, 1931, the bank was in financial straits, such had been its condition for some time, and it was unable to continue the surety bond protection and, through. Mr. Hudson, turned over to defendant certain mortgages amounting to $4,893.56, and a cashier’s check for $256.72, in payment of the certificate of deposit with interest. December 28, 1931, the bank, still being unable to meet its obligations, closed its doors. February 15, 1932, plaintiff was appointed receiver, and May 24, 1932, this suit was brought to obtain cancellation of the assignments • of the mortgages, surrender • of the instruments' and return of the money paid because con summated in contemplation of insolvency and as a preference of one creditor of the bank.
The circuit judge found that, the transaction was void as a preference after insolvency, and decreed return of the instruments and money.
It is admitted that, under the mentioned statute, plaintiff had the burden of showing that the transaction was after one or more acts of insolvency of the bank or made in contemplation of insolvency, or for the purpose of preventing application of the bank’s assets as provided by law, with preference to defendant over the other creditors.
Plaintiff claims that the bank was insolvent; that Mr. Hudson knew the fact; that withdrawals by some others on certificates of deposit had been refused by reason of the inability of the bank to meet such obligations, and that the transaction was in contemplation of insolvency and was carried out in order to give defendant preference over other creditors. Defendant’s specific denial of such averments presents the issues upon this appeal.
Was the bank insolvent on September 26, 1931?
Practically all authorities define insolvency, in its legal sense, as existing whenever a bank, from any cause, is unable to pay its obligations in the ordinary or usual course of-the business. See Stone v. Dodge, 96 Mich. 514 (21 L. R. A. 280); Stone v. Jenison, 111 Mich. 592 (36 L. R. A. 675); Commonwealth, ex rel. Attorney General, v. Tradesmen’s Trust Co. of Philadelphia, 237 Pa. 316 (85 Atl. 363); Steele v. Commissioner of Banks, 240 Mass. 394 (134 N. E. 401, 20 A. L. R. 1203). The above definition excludes extraordinary demands, induced by panic and commonly evidenced by a run on the bank, but includes all demands to be anticipated in the ordinary conduct of banking.
Mr. Hudson knew the condition of the hank, for it was operated- under his immediate supervision. The evidence disclosed a condition of impending insolvency on the date of the transfer, and such was the moving cause for the transaction. If the transfer was intended by the bank officer as a preference, in contemplation of insolvency, then the transaction was" void. The intent of the transferee is not the test of invalidity but, if a part of a concerted movement toward gaining the preference it may not be ignored.
The record brings us to agreement with the following findings made by the circuit judge:
“Practically immediately after the closing of the Greenville Bank, the president and cashier of the Sheridan bank became frightened at the situation and adopted the policy of refusing payment of (savings) deposits * * * and continued such policy with some slight modification dependent upon the necessities of the borrower to and until the doors of the bank were finally closed. The fact that the bank was even then in a dangerous situation on account of its inability to make collection or to borrow at other banks, or of any other person; is amply attested not only by the correspondence which passed between John R. Hudson and the bank cashier, Mr. Walden, but also by the testimony of Mr. Walden as to their conversations in that regard, and finally-by Mr. Hudson’s admissions on the trial of the case. Continuously the bank reserves were very much impaired and much below the legal requirements and its surplus and undivided profits were wiped out. Attempts were made to borrow of other banks and from the Gleaners and from the directors themselves, but without success. There was also talk of the stockholders submitting to a voluntary assessment in order to replenish the resources of the bank, but nothing- materialized. In the meantime also various depositors, having been refused payment, gave the requisite 90-day notice in -writing of a legal demand before instituting suit.
“On September 4, 1931, Mr. Walden made his usual daily report to Mr. Hudson as to the condition of the bank. After setting forth the various items of information and the figures relating thereto, he added:
“ ‘Since balancing we have sent to Peoples Wayne Bank checks totaling $355.94, which would take care of the overdraft and enough for their service charge and unless something comes in tomorrow, it looks as though that would be about all there is to it unless you fellows can make a raise over there some place. With the $2,000 currency that came after we balanced it makes us $7,067.70 and that is all, and that is currency in bank and nothing in Detroit. ’ »v- »v- ¿i. WWW
“No loan was obtained from the defendant, * * * Defendant, on the other hand, desired the payment of its deposit in full. Mr. Hudson, its treasurer, desired the same thing. Payment could not be made in cash without closing the doors of the bank. The bonds owned by the bank were not acceptable. The mortgage list was the only feasible source from which such payment could be made. The use that was made of the list of mortgages was to select therefrom mortgages that would be acceptable as such payment. Three were selected. Mr. Hudson took the initiative and was an active participant in and promoter of the deal. * * *
“In this transaction Mr. Hudson assumed to represent and act for the bank. His was the mind that conceived the arrangement and his was the will, the judgment and the executive hand that consummated it — in the language of cashier Walden, ‘he was the boss.’ The cashier to all intents and pur poses abdicated Ms position and yielded to him. his authority without protest. * * *
“In no case of refusal (of savings deposits) did any ‘run’ exist. The refusal was caused by the inability to pay the depositor in the ordinary course of business. Such refusals constituted not only acts of insolvency but also establish the fact of insolvency itself. * * *
“Again in making payment in full to one depositor as in the instance involved in this case and in refusing to make any payments to others, as was done in the instance of * * * many others, the bank was not only guilty of actual insolvency but also of granting, knowingly and intentionally an unlawful and actual preference. It is noteworthy in this connection that Anna Mae Carstenson was refused payment of her deposit of $1,000 on the 26th day of September, 1931, the very day of the payment by the bank to the defendant. The cashier refused to pay cash to her and offered her no mortgage or other security.
‘ ‘ The bank could not pay in cash and Mr. Hudson knew it. He also knew thére was no longer any reasonable expectation or probability of being able to redeem the bank’s fortunes and continue its business. He knew that nothing short of a miracle would suffice to thaw out its frozen assets and to restore value to its worthless bonds. In this emergency he took no chances, nor did any officer, director or stockholder of the bank by loaning or advancing any money to the bank. Doubtless defendant knew that the bank could not pay in cash. Its officers, including Mr. Hudson, obviously knew it. They never demanded or even requested cash. They were glad to get mortgages and to get them so easily. By the aid of their treasurer, who was also the bank president, the payment was thus made behind the back of the board of directors and without the knowledge of or notice to such board or any member thereof. No chances were taken of objections from that source. The manner as well as the medium of payment was unusual and not in the ordinary course of business. * # #
“Furthermore the evidence is 'convincing that in arranging for the payment in question the purpose of the officers of the Gleaners, including John R. Hudson, the treasurer, was to obtain a preference over the other creditors and depositors of the bank.”
The decree is affirmed, with costs to plaintiff.
Nelson Sharpe, C. J., and Potter, North, Fead, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Wiest, J.
This is an action of replevin to recover bonds, shares of stock and other securities, claimed by plaintiff under gift causa mortis made by Frances B. Eby, a few days before her death on June 26, 1931. Mrs. Eby was 92 years of age and possessed an estate of about $124,000, most of which was in currency in a safety deposit box. October 15, 1925, Mrs. Eby executed a will, devising her estate, real and personal, to the Grand Rapids Association for the Blind and Sight Conservation, “to be used however solely for educational purposes for and with the blind and for no other purpose than educational.” This will was filed for probate on July 3, 1931, ^ and the Grand Rapids Trust Company appointed special administrator on that day. July 30, 1931, an inventory of the estate was filed. August 31, 1931, plaintiff herein filed objections to the probate of the will, alleging:—
“That said purported last will and testament is not in accordance with a certain agreement between your petitioner, Nellie F. Bosely, and Frances B. Eby made during her lifetime, and for the further reason that your petitioner was informed and believes that subsequent to October 15, 1925, said Frances B. Eby made her last will and testament and which said last will and testament was in accordance with the agreement between your petitioner and said Frances B. Eby.”
September 18, 1931, the will was admitted to probate and the Grand Rapids Trust Company appointed administrator de bonis non. October 8, 1931, plaintiff filed a bill in the Kent circuit court in chancery alleging:—
“That about 12 years ago, after plaintiff had for several years ministered to the wants of said Frances B. Eby, had done errands for her and had accompanied her to church practically every Sunday, and to lectures and other occasions, often evenings, said Frances B. Eby, at said time, about 12 years ago, stated to plaintiff in the presence of others that if she, the plaintiff, would care for said Frances B. Eby during her lifetime, and during all illness, and would thus see to it that she, the said Frances B. Eby, would not be taken to a hospital, but would be 'nursed and cared for by plaintiff, and that if plaintiff would so arrange that she, the said Frances B. Eby, would be buried where said Frances B. Eby wished to be buried; that she, the said Frances B. Eby, by her last will and testament would leave all her property, after the payment of her debts, to plaintiff. Plaintiff avers that she then and there accepted such arrangement and agreed to care for said Frances B. Eby and to nurse said Frances B. Eby in illness and to carry out her said wishes as to burial.”
Plaintiff further alleged in the bill that she carried out the terms of the agreement. She further alleged:
“That during said last illness, said Frances B. Eby gave to plaintiff the keys to her safety deposit boxes and informed plaintiff where her properties and securities were; that she also intrusted into plaintiff’s care about $35,000 worth of securities, which securities plaintiff delivered to the special administrator of decedent’s estate.”
She asked for specific performance of the alleged agreement. The Grand Rapids Trust Company, as administrator of the estate, the Grand Rapids Association for the Blind and Sight Conservation, beneficiary under the will, and certain named heirs-at-law of the testatrix, were made defendants. That bill came on for hearing in December, 1931, and, after witnesses in behalf of plaintiff testified, the attorney for plaintiff asked leave to withdraw the bill of complaint, without prejudice, in order to file a claim for services against the estate. Counsel for defendants informed the court that they had no objection if the claim was to be filed in the probate court upon the quantum meruit.
The court announced:
“The case is dismissed without costs and without prejudice to the plaintiff to file a claim in the probate court for services rendered on the basis of the quantum meruit.”
J anuary 22,1932, plaintiff filed a claim in the probate court for alleged services rendered the deceased, along the lines alleged in the discontinued suit and amounting to $30,340. The claim was allowed at the sum of $1,000, in August, 1932. September 8, 1932, plaintiff appealed the claim to the circuit court and on December 8, 1932, while such appeal was pending in the circuit court, she filed another bill in the superior court of Grand Rapids to have specific performance of the contract alleged in her first and dismissed bill of complaint. In that bill she again alleged:
“That during said last illness, the said Frances B. Eby gave to plaintiff the keys to her safety deposit boxes and informed plaintiff where her properties and securities were; that she also intrusted into plaintiff’s care about $35,000 worth of securities, which securities plaintiff had in her personal and physical possession at and before the death of Mrs. Eby, and delivered same to the special administrator of decedent’s estate upon its request.”
She further alleged:
“That after the admitting to probate of the purported last will and testament of said deceased in the probate court of Kent county, plaintiff caused suit in chancery to be filed in the circuit court for the county of Kent on, to-wit, the 8th day of October, 1931. In this action plaintiff- asked for specific performance of the oral agreement between her and said deceased, and that the estate and property of said deceased be assigned and decreed to plaintiff; that at the hearing of said cause and after only a few witnesses had been heard by the court on behalf of said plaintiff, plaintiff is informed that her then acting attorney submitted to a nonsuit and that many of her witnesses and very important witnesses who could and would have verified the allegations in the bill of complaint, were not heard by the court ; that she was unaware of the effect of such procedure known as the submitting to a nonsuit by plaintiff; that had she known the effect of same, she would have insisted that all her witnesses, of whom at least 12 or 15 were ready to take the witness stand, should have been called as witnesses and sworn, and their testimony taken before the court; that said procedure was against her wishes and contrary to her rights in the premises; that said order of non-suit was entered in the circuit court for the county of Kent, in chancery, on, to-wit, the 29th day of December, 1931. * * * Plaintiff disclaims the right of her then acting attorney to submit her cause to a nonsuit and avers that she has not had her day in court; that the proofs ¿vailable to sustain the allegations in her bill of complaint were not presented to the court and she now; begs leave of this court to present her cause to substantiate the allegations in her bill of complaint.
“That plaintiff thereafter, to-wit, in the month of January, 1932, presented a proof of claim against the said estate in the probate court for the county of Kent; that same was done to preserve her rights on the last day for the hearing of claims; that thereafter commissioner on claims was appointed by the probate court. Plaintiff’s said claim was allowed in part only, and she thereupon appealed from the order of the said probate court to the circuit court for the county of Kent; that said appeal has not been heard and plaintiff avers that she does not wish the same heard. She now here asserts her right of election to proceed with this action in chancery for the specific performance of the oral contract and agreement made and entered into between plaintiff and the decedent, rather than to proceed to a hearing of the claim now pending in the circuit court for the county of Kent. Plaintiff now here offers to withdraw said appeal on said claim and to withdraw her claim from the files and records of the probate court of Kent county in the matter of the estate of said Prances B. Eby, deceased, when ordered or directed by the court to make an election as to what remedy said plaintiff will pursue. * * *
‘ ‘ That her right of action at law, based on a proof of claim for services rendered, by reason of the restricted rules of law and evidence, would not give her full, adequate and complete remedy; that she does not wish to pursue both forms of action, but desires to make her election as to what form of action she will pursue, whether under this bill of complaint for specific performance in a court of chancery, or on the claim presented in the matter of said estate in a court of law, when ordered and instructed so to do by the court.”
This bill was filed against the Grand Bapids Trust Company, administrator de bonis non, and the Grand Bapids Association for the Blind and Sight Conservation.
Defendants moved to dismiss the bill on the grounds of want of equity; that a like proceeding had been dismissed with prejudice to commence a suit of such character; that plaintiff elected to proceed by filing a claim in the probate court and such action was still pending and the election was binding upon plaintiff and she was estopped from prosecuting the suit.
March 31, 1933, the court dismissed the bill. No appeal was taken. Thereupon plaintiff pressed her claim against the estate upon her appeal and, on March 8, 1933, obtained a judgment in the sum of $8,000 against the estate. The administrator of the estate filed a bill of interpleader to have tbe court adjudicate between former attorneys employed by plaintiff, claiming liens on tbe judgment. April 29, 1933, tbe bill of interpleader was disposed of by stipulation and tbe judgment was paid. June 26, 1933, plaintiff commenced tbe suit at bar by writ of replevin, issued against tbe Grand Rapids Trust Company, but not as administrator de bonis non of tbe estate of Frances B. Eby, deceased. By tbe writ sbe sought to recover tbe bonds and securities and property turned over to ber by Mrs. Eby a few days before Mrs. Eby’s death. Tbe designated securities were not seized under tbe writ, because tbe same bad been administered by order of tbe probate court as a part of the estate of the deceased and, therefore, plaintiff declared against tbe defendant for tbe value thereof. Tbe case came to trial and, at tbe close of tbe proofs, tbe court, on motion of defendant, entered judgment for defendant. Plaintiff prosecutes this appeal.
Plaintiff claims that tbe suits for specific performance and tbe claim presented to tbe probate court for services rendered were consistent and when sbe discontinued tbe first equity suit sbe only abandoned tbe claim under express verbal contract and made claim upon an implied contract to have reasonable compensation for services. Sbe now claims that tbe securities and property involved in this suit in replevin were presented to ber by Mrs. Eby as a gift causa mortis, wholly actuated by love and affection and not at all as compensation for services rendered and, therefore, the former recovery for services was not an election on tbe subject matter ber-e involved and not at all res judicata.
Tbis claim is rather late, and is contradicted by allegations in ber bills for specific performance, and was not made even in this suit until the declaration was amended at the close of plaintiff’s proofs, and the claim is also inconsistent with her claim that she was to have the whole estate. A decree in the equity-suits in plaintiff’s favor would have granted her the whole estate and, consequently, the securities and property involved in this suit.
In her second bill for specific performance she asked the court to determine her right of election. Her claim for services was then pending in the circuit court on appeal and the court, by dismissal of her bill, remitted her to that remedy and she pursued it to judgment and satisfaction.
The record contains the colloquy between counsel and the court and the leave granted upon plaintiff’s request to dismiss the first bill for specific performance.
Court Rule No. 38 (1931), in effect when this discontinuance was had, was held by this court to cover both a dismissal and nonsuit on a plaintiff’s application, and that it forbid a discontinuance after answer, except by stipulation signed by the defendant or order of the court or judge. Pear v. Graham, 258 Mich. 161.
At the time plaintiff was permitted by the court to submit to a nonsuit by way of dismissal the case was in the course of hearing and, under the mentioned rule, the court was empowered to grant the same with or without prejudice to future action by plaintiff. If such desired discontinuance was of evident prejudice to defendants the court had power to extend protection against commencement of a like suit. The court permitted plaintiff to abandon the suit on trial, without prejudice to the right to present her claim against the estate. But it is said that the court speaks through formal orders and the re striction invoked by defendants, while expressed in open court by the judge, was not incorporated in the formal order.
It is true that the order of the court governs but this does not enable plaintiff to escape from the rule that, when she elected to abandon the suit for specific performance of the alleged contract in order to present her claim against the estate-on the quantum meruit, and did so proceed to judgment, she is now estopped thereby from seeking other remedy.
In both bills of complaint she alleged that the property involved in this suit, and which she now claims constituted a gift causa mortis, was merely intrusted to her care by Mrs. Eby, and that she had delivered the same to the • special administrator of the estate. At the trial of this case plaintiff attempted to draw a distinction between the securities as a gift causa mortis, actuated by love and affection and the contract to give her the whole estate for services rendered.
A reading of the testimony on such subject is not at all persuasive that any such split in bounty ever took place or was thought of by plaintiff until confronted with the inconsistency of presenting a claim against the estate that she had claimed wholly belonged to her by reason of contract.
Plaintiff did not bring this suit against the administrator of the estate and seeks advantage thereby. The administrator had the securities and property as assets of the estate and so administered the same under order of the probate court, and the effort of plaintiff to eliminate the representative capacity of defendant goes for naught. The administrator should have been made the defendant, but we do not plant decision on such misnomer.
Before bringing this action plaintiff had had her days in court. She is bound by her former verified pleadings, and procedure exercised in her behalf. Buies of estoppel, election and res judicata, command affirmance of the judgment.
The judgment is affirmed, with costs to defendant.
Nelson Sharpe, C. J., and Potter, North, Fead, Butzel, and Edward M. Sharpe, JJ., concurred. Bushnell, J., did not sit. | [
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North, J.
In December, 1930, plaintiffs acquired by assignment the vendee’s interest in a land contract dated October 26, 1923. There had been one previous assignment of this interest. Defendant herein was the vendor. The contract covered Detroit real estate, recited a purchase price of $12,000, down payment $2,500, and provided payment of balance in monthly instalments. When plaintiffs purchased the vendee’s interest there was still unpaid on the contract price approximately $4,700. Plaintiffs defaulted in making payments. In 1932 notice of forfeiture was served. Forthwith plaintiffs filed the. bill of complaint herein. . They seek cancellation of the contract and an accounting for all sums paid thereon less reasonable rental value. Issue was joined, testimony taken in open court, and decree entered denying cancellation, but awarding plaintiffs $1,500 credit on the contract price because of the existence of certain property restrictions which the trial court.found were incumbrances on the land. Plaintiffs have appealed.
Plaintiffs principally base their alleged right to cancellation and accounting on the'provision in the land.contract that the vendors:
“Will at their own proper cost and expense furnish a certificate of title and execute and deliver to said party of the second part, a good and sufficient conveyance by warranty deed of said above described premises, free and clear of and from all liens and incumbrances.!’
Plaintiffs claim that after they, acquired the vendee’s interest in the contract they learned for the first time that in defendant’s chain of title there is a deed dated March 12, 1895, recorded one day later, in which it is provided:
“That said party of the second part, his heirs and assigns, shall never at any time permit intoxicating liquors to be either made or sold on said pieces or parcels of land or any part thereof, and shall neither erect nor suffer to be erected thereon any buildings except such as .are to be used exclusively for residence purposes and neither to place nor erect nor suffer to be placed or erected thereon any dwelling house of less than ' two stories in height or costing less than $1,200 and that no part of any building on said pieces or parcels of land shall be placed within 15 feet of the street line at the front thereof.”
In this connection it may be noted that the contract assigned to' plaintiffs specified' that the vendee, heirs and assigns, “shall use the premises herein described for residence'purposes' only.”' Also the assignment to plaintiffs recites that' the assignor conveys and warrants to the assignees (plaintiffs herein) the land described in the contract’“subject to any restriction' upon the use of the s'ame.” ('While the circuit' judge found the above-nbt'ed restrictions in the 1895 deed constituted an incumbrance, he denied cancellation and in lieu thereof awarded plaintiffs $1,500, the same to be applied on the unpaid contract price. Appellants assert that iñ so doing the trial court attempted to make a. new contract for the parties, that’the court did not have the right or power to so do, and in so decreeing committed error.
Appellants would scarcely have cause to complain even if the court’s decree did in effect give rise to what they assert is a'“new contract” because that is exactly the kind of relief they are asking in their bill of complaint. Therein they ask the court to decree an accounting for and return of the payments made on the contract, but to deduct therefrom the amount that plaintiffs and the prior holders of the vendee’s interest as tenants should pay defendant as landlord for rentals. Surely this is asking relief incident to which the court in effect proceeds on the theory of a contract relation which in fact was never entered into between these parties. But instead of decreeing a new contract relation, the circuit judge refused cancellation and left plaintiffs their rights as vendees under the existing contract; and in working out equitable relief between the parties decreed minimization of the contract price to the extent of $1,500. Plaintiffs seeking equity are bound to do equity, and by its decree the court said to them the equitable thing required of you is that you continue as vendees under your same contract but at a reduced purchase price. The court did not force a new contract relation upon plaintiffs, but instead decreed the kind and the amount of relief they may have. Rescission and accounting should not be granted if, as we think it here appears, the result would be unjust or inequitable. Hyman v. Boyle, 239 Mich. 357; Amster v. Stratton, 259 Mich. 683.
Further, plaintiffs are in a court of equity asking cancellation which is not a matter of right, but rather one of grace. Granting or withholding such relief is largely within the court’s discretion. Baughan v. Mortgage & Contract Co., 263 Mich. 249. Plaintiffs stand in privity with the prior contract vendees. Their rights are not materially different than had plaintiffs been the original purchasers. The contract was entered into in 1923. The restrictions of which plaintiffs complain were of record in Wayne county in 1895 and have so continued ever since. The vendees took control of this property more than 10 years ago and have continued in control to the time of starting this suit. They have held it until its value has greatly depreciated. It is convincingly disclosed by this record that plaintiffs seek to escape the terms of what now appears to have been a bad bargain, and to collect from defendant not only what plaintiffs herein have paid to him on the contract, but also the instalments paid by prior vendees, less rental value which they noyr ask the court to fix. Instead) the circuit judge adopted the more equitable method of adjusting the rights of the respective parties by decreeing the amount of damage resulting from the alleged incumbrance and reducing the purchase price by that amount. . The circuit judge, in our judgment, was liberal with plaintiffs and they have no equitable ground of complaint. In so holding we have not overlooked their claim that because of the above-mentioned restrictions they lost an opportunity to' sell their interest in this property for upwards of $3,000. As above noted the public records for years have disclosed the restrictions of which plaintiffs now seek to complain. The assignment under which .they hold recites that their assignors’ warranties were “subject to any restriction upon the use of the” property. Cancellation sought because of the restrictions noted was properly denied.
Plaintiffs also assert the right to cancellation on the ground that there are certain defects in defendant’s record title. The specific complaint here is that defendant first acquired an interest in this property as a vendee under a land contract in which one Andrew J. Cox was the vendor. Mr. Cox died and the deed later given in performance of the contract was executed by the administrator of the Cox estate pursuant to the statute (see 3 Comp. Laws 1929, § 15673), but the letters of administration were not made a matter .of record in the office of the reg ister of deeds in Wayne county. Obviously this is a defect of decidedly minor character which can be easily corrected. More than a year before plaintiffs started this suit in a letter written by them to defendant and referring to. this very phase of the title it is said: “The matter is not serious and seems to be more an omission of recording than anything else.” Clearly this circumstance did not constitute a ground for cancellation. Adadow v. Perry, 225 Mich. 286; Detroit Fidelity & Surety Co. v. Bushman, 260 Mich. 115; Walcrath Realty Co. v. Van Dyke, 263 Mich. 316.
The decree entered in the circuit court is affirmed, with costs to appellee.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Fead, J.
In 1927 plaintiff purchased some bonds from defendants Otis & Company, through their agent Hayden. The bonds had not been accepted for filing by the Michigan securities commission as provided by the blue sky law, Act No. 220, Pub. Acts 1923. In 1932 plaintiff commenced this suit for rescission of the purchase and recovery of the price paid. His declaration is planted upon the statute, but contains the further allegation that plaintiff, at the time of purchase, did not know the law had not been complied with and, “due to the fraudulent concealment of this fact and the withholding from him by these defendants of this knowledge and information,” he had only recently discovered the noncompliance. The declaration alleges that defendants were “dealers and salesmen within the meaning of Act No. 220, Pub. Acts 1923.” Personal service was made upon Hayden and service on Otis & Company, a foreign partnership, was made through the chairman of the Michigan securities commission, as provided in the statute.
The principal defense is the statute of limitations. Act No. 220, Pub. Acts 1923, § 20, provides:
“Every sale or contract for sale of any security, not accepted for filing under this act or made contrary to any order of the commission, shall be voidable at the election of the purchaser, and the person making such sale or contract for sale, and every agent of or for such seller who shall have participated or aided in any way in making such sale, knowing such sale to be in violation of this act, shall be jointly and severally liable to such purchaser, upon tender to the seller or in court of the securities sold or of the contract made, for the full amount paid by such purchaser, together with all taxable court costs, in any action brought under this section : Provided, That no action shall be brought for the recovery of the purchase price after two years from the date of such sale or contract for sale. No purchaser otherwise entitled shall claim or have the benefit of this section, who, having knowledge of the fact that such sale was made in violation of the provisions of this act, shall have refused or failed within a reasonable time to accept the voluntary offer of the person making the sale to take back the securities in question and to refund the full amount paid by such purchaser.”
Plaintiff contends the two-year period of limitations was extended because (1) defendants fraudulently concealed the cause of action from him (3 Comp. Laws 1929, § 13983), and (2) defendant Otis & Company has been absent from the State (3 Comp. Laws 1929, § 13980). These exceptions are found in the general statute of limitations. There are no such saving provisions in the blue sky law.
The applicable rule is that, as the cause of action is created by statute, the statutory conditions, including the period of limitations, must be complied with. The limitation of time is a limitation on the right to recover.
“A positive distinction seems to be made between cases in which the limitation of time for bringing suit is contained in the statute which creates the liability and right of action and general statutes of limitations of the rights of action existing under other statutes or under the common law. In the former the limitation of time is a limitation of the right, and, as has been said, the suit cannot be maintained if not brought within the time limited. In the latter the limitation of time for bringing suit is a limitation of the remedy only, and it has been held that under such general statutes of limitation the defendant may be estopped from the benefit of the statute by an agreement waiving it, or by concealment or by fraud. The statute here in question creates a new liability, and takes away defenses formerly available, and the right of action therein created is conditioned upon its enforcement within a prescribed period. The action not having been brought within such period designated by the statute, it is lost, and the trial court ruled correctly in so holding.” Bement v. Railway Co., 194 Mich. 64, 68 (L. R. A. 1917 E, 322).
See, also, 77 A. L. R. 1050.
The general statute of limitations (3 Comp. Laws 1929, § 13976) and the saving provisions therein have no application to a cause of action created by statute and conditioned on time therein expressed. Dahrooge v. Rochester German Ins. Co., 177 Mich. 442 (48 L. R. A. [N. S.] 906); Rugland v. Anderson, 30 Minn. 386 (15 N. W. 676); Taylor v. Cranberry Iron & Coal Co., 94 N. C. 525; Gengo v. Mardis, 103 Neb. 164 (170 N. W. 841, 8 A. L. R. 134); Rodman v. Railway Co., 65 Kan. 645 (70 Pac. 642, 59 L. R. A. 704); Pittsburg, C. & St. L. R. Co. v. Hine, 25 Ohio St. 629.
Judgment reversed, with costs and without new trial.
Nelson Sharpe, C. J., and Potter, North, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Edward M. Sharpe, J.
In 1917 the Michigan & Shelby Land Company (hereafter called the Shelby company)' obtained a 99-year lease from the fee owners of the site upon which the Lafayette building in Detroit is now located. The lease was secured upon the agreement that a new office building be erected. Later the Michigan Lafayette Building Company (hereafter called the Lafayette company) took a sublease from the Shelby company and erected a modern office building upon the property.
Each lease contained the following provisions:
“It is further agreed that said new building when so erected shall be and become a part of said premises and the property of said first party’s lessors as provided in the underlying lease.
“The tenant agrees during the term of this lease to make all repairs and alterations that may be needed or required to the building now on or hereafter to be erected upon said premises, and the appurtenances and appliances connected therewith. And the tenant herein agrees that at the expiration of this lease it will deliver up the same to the party of the first part herein, in good repair and good condition, and that all buildings and improvements situated thereon, whether erected by it or by the party of the first part, shall be and become a part of the premises and be delivered to the said first party as a part thereof.”
In 1931 the Lafayette company was in default upon its obligations under its lease while the Shelby company was able to make arrangements for preserving its lease with the fee owners. October 20, 1931, ouster proceedings were taken and possession recovered by the Shelby company as against the Lafayette company. However, on the 17th day of October, 1931, the Shelby company entered into an agreement with the Lafayette company whereby the former gave the latter a 90-day option to reinstate its lease and agreed to assume the pay roll covering wages from October 15, 1931, in consideration of the immediate surrender of possession by the Lafayette company on October 20, 1931, and the assignment to the Shelby company of all subleases with tenants in the building and of rents then due or to become due from such tenants.
Plaintiff Arthur Colton is one of the holders of mortgage bonds of the Lafayette company and upon refusal of the Lafayette company to redeem the bonds, brought suit against the Lafayette company and obtained a judgment. On October 8,1932, plaintiff secured a court order appointing a receiver for the Lafayette company. The receiver proceeded against the Shelby company to reclaim certain property which he alleged was left in the building by the Lafayette company at the time possession was given to the Shelby company. Much of this property consisted of office furniture taken from tenants of the building who had failed to pay their rent. The lower court dismissed the receiver’s petition and he has appealed.
Appellant claims that the property left in the building was personal property, title to which remained in the Lafayette company and now belongs to the receiver of that company, while the Shelby company contends that the property in question was either fixtures or “improvements” within the clause of the lease quoted above and that, even if the receiver’s claim is valid, he did not sufficiently prove the items and value of such property. Appellee also claims that such personal property as could not be included in fixtures or improvements became the property of the appellee by a parol agreement on October 20, 1931, in consideration of the Shelby company assuming the pay roll for wages from October 16 to 20,1931. This contention is not sound, as the written agreement of October 17, 1931, contains a provision whereby the Shelby company agreed to assume the pay roll for wages from October 15, 1931.
Counsel for the appellee criticize the proof offered by appellant as to the articles left in the building and the value of the same, yet Mr. Mercer, the witness produced by appellant, had been superintendent of the building for five years, was there when the Shelby company took possession and stayed on as such for three months thereafter. He claims it took him four or five days to make up the list testified from and introduced in evidence. The appellee offered no evidence, either as to the items or value of the property, to contradict that given by Mr. Mercer and we cannot say that his testimony has no value.
The test of what are fixtures was given in Peninsular Stove Co. v. Young, 247 Mich. 580, at 582:
“What are fixtures and become part of the realty was considered at length in Morris v. Alexander, 208 Mich. 387. This court there approved of the three general tests which may be applied as stated in 11 R. C. L. p. 1059. These are, ‘first, annexation to the realty, either actual or constructive,- second, adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated; and third, intention to make the article a permanent accession to the freehold.’ In applying these tests, consideration must be given to the nature of the structure and the use to which it was to be put when completed. ’ ’
In Detroit Trust Co. v. Detroit City Service Co., 262 Mich. 14, at page 30, the court said:
“In distinguishing between what is a fixture and what a chattel, when neither is annexed to the free hold, the use, nature and intention of the parties must be considered.”
Under this theory we hold that it was the intention of the Lafayette company when they purchased such articles as repair parts to elevator switchboard, elevator rugs, window shades, awnings, double doors and trim, base and shoe, red gum partitions, storm doors, elevator ,uniforms, window curtains, rubber matting, entrance mats, chain falls, Minneapolis thermostats and clock, wall ease and mirror, pump tanks for elevator, to consider such articles as fixtures and improvements. These articles could not be removed from the building or transported from place to place without impairing their value as well as the value of the building. This building was erected for the purpose of renting stores and offices to the public and in order to be rentable must have various articles or accessories such as those listed above. •
However, unused supplies consisting of such articles as paper towels, soap, paint, and electric light bulbs, cannot be classed as fixtures or improvements but are clearly personal pr'operty. Neither can used supplies and detached equipment such as pails, mops, vacuum cleaners, ladders, electric grinder, drill press, etc., be considered as fixtures or improvements. Articles of ordinary movable office furniture come within the rule laid down in Scudder v. Anderson, 54 Mich. 122, and are personalty. Other items which we consider 'personalty are the Westinghouse motor, rope fall and electric fans for elevators.
In order to avoid cumbering the printed report with an itemized list of these various articles of personal property and their value, we have attached hereto a complete list thereof. This list will be signed and filed with the clerk of the court and copies thereof furnished to the parties.
Appellant may have the return of the articles itemized in the attached list and, in default of the return of any of said articles, the value thereof as shown by such list. The former order is reversed, and the trial court is hereby directed to enter an order in conformity with this opinion. Appellant may have costs.
Nelson Sharpe, C. J., and Potter, North, Fead, "Wiest, Butzel, and Bushnell, JJ., concurred. | [
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Reid, J.
The bill of complaint in the present case was filed to enjoin defendants, constituting the Oakland county tax allocation board, from fixing any millage upon the equalized valuation of Waterford township which would result in a total tax spread of over 15 mills on the assessed valuation as fixed by the assessing officer of said township and certified by the board of review, exclusive of debt service.
Defendant board admits that it proposes to allocate millages on the basis of the assessed valuation as equalized by the county board of equalization, and not upon the assessed valuation as fixed by the assessing officer and certified by the board of review.
The instant case requires a judicial construction of the meaning of the term “assessed valuation” as used in the tax limitation amendment to the State Constitution (Const. 1908, art. 10, §21, adopted November 8, 1932), which provides in part:
“The tothl amount of taxes assessed against property for all purposes in any one year shall not exceed one and one-half per cent, of the assessed valuation of said property. ’ ’
The term “assessed valuation” in the above constitutional amendment was construed in St. Ignace City Treasurer v. Mackinac County Treasurer, 310 Mich. 108, 118, to mean “the local assessment as approved or changed and corrected through the statutory process of county and State equalization.”
The precise question in the present case is whether the equalized valuation of Waterford township, or the assessed valuation as fixed by the assessing officer and board of review, shall be used in fixing the millage for township purposes and the purposes of other local units. Plaintiff' contends that this question was not determined by our decision in the St. Ignace Case. The above constitutional amendment and the statutory enactments relative to equalization and allocation clearly indicate that the allocation for township purposes and for the purposes of other local units must be determined upon the equalized valuation of the property in the township. Therefore, we conclude that the allocation for the purposes of Waterford township and local units thereof shall be determined upon the basis of the equalized valuation of the property in said township.
We are not unmindful that in previous decisions of this court there may be found statements which appear to be inconsistent with our conclusion herein. But it should be noted that subsequent to those former decisions there have been changes in the Constitution and in the general property tax law of this State, which we think now render them inapplicable to, or at least inconsistent with, a proper interpretation of the present general property tax law construed in connection with the 15-mill constitutional amendment and statutory provisions providing for equalization and allocation. The following statement from our decision in the St. Ignace Case (p. 116) is equally applicable to decision in the instant case:
“To eliminate county equalization would tend to induce each assessing unit to evade the cash-value rule and place its assessment at the lowest possible figure. This would result in a chaotic inequality of assessments and undoubtedly in a failure to produce the required revenues. The constitutional requirement of a ‘uniform rule of taxation’ can be satisfactorily effected only through the process of equalization. ’ ’
The question of the rights of an individual property owner who might contend that the tax upon his property exceeds the constitutional limitation is not before us in the present case. Further, because the issue has not been raised, we do not herein express any opinion as to the propriety of adjudicating the subject matter here in litigation by means of an injunction proceeding. See 1 Comp. Laws 1929, § 3507 (Stat. Ann. §7.168). However, the procedure in that respect in the instant case is not to be accepted' as a precedent.
The decree of the trial court dismissing plaintiff’s bill and determining that the millage shall be allocated by the Oakland county tax allocation board on the basis of the equalized assessed valuation of said township is hereby affirmed. A public question being involved, no costs are allowed.
Starr, C. J., and North, Carr, Butzel, Bushnell, Sharpe, and Boyles, JJ., concurred.
See Const. 1908, art. 10, § 7.—Reporter.
See Const. 1908, art. 10, § 3.—Reporter. | [
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Fead, J.
In-1919 defendant platted certain lots in Oakland county under the name of Bird Island Subdivision. The plat was approved by the township board. A highway called “Island Park Drive” ran to lot 101, which abutted on Lake Oakland. The highway did not touch the lake.
In 1921 defendant Van Syckle (to whom we will refer as defendant) presented to. the township board for approval a plat, called Bird Island No. 1, of an island east of the first subdivision. The single highway thereon runs to the water’s edge, opposite lot 100 of the other plat. The plat shows lot 100 marked as “Island Park Drive, Bird Island Subdivision,” and dotted lines running from the lot to the end of the highway on the island. The island subdivision contains 27 lots, a park and a street, and 16 or 17 houses have been constructed thereon. By the plat, the park and street were dedicated to public use.
Before proposing the island plat, defendant had constructed a bridge 132 feet long from lot 100 of the mainland to the water’s end of the island road, as it appears on the plat. It is undisputed that the bridge was discussed when the plat was presented for approval. Defendant wanted it taken over by the township as a highway, a member of the board objected, defendant stated he would withdraw the plat if the bridge was not so accepted and finally the board agreed to accept the bridge as part of the highway system and defendant agreed to deed lot 100 to the township for highway purposes. The plat was formally accepted by the board June 28.1921, but no mention was made of the bridge in the records. The bridge has been used generally by the public since the plat was approved.
Under agreement with the board when the plat was accepted, defendant constructed the island highway in 1924, and it was formally accepted by resolution of May 3d. May 5th he delivered to the township clerk a deed of lot 100 for highway purposes. The clerk claims he did not present it to the board for two or three years.
About May 27, 1927, when the personnel of the township board had changed and the bridge had become out of repair, the attorney for the township notified defendant that the township claimed the bridge was not a highway and the township was not liable for its upkeep. August-11, 1928, the township board, by resolution, disclaimed liability for the bridge, denied it- was a highway, and ordered the deed returned to defendant. It was offered to him and he refused to take it. In 1929 notices were posted near the bridge, stating it was a private bridge and the township was not liable for it.
At various times work was done by the highway commissioner on lot 100. It- is apparent, and the court so found, that the commissioner recognized and worked lot 100 as part of the highway system. However, while road machinery was taken over the bridge for work on the island the township did no work on the bridge itself nor other specific act to recognize it as public.
Defendant sold lots on the island under representation that the bridge was a highway, to be maintained by the township. Plaintiff purchased a lot. The bridge is now in need of repair. Plaintiff brought this action to compel its repair by either defendant Van Syckle or the township. The question is who has the obligation to. maintain it. The court held it was not a highway and the obligation rests on Van Syckle and entered decree accordingly.
Had defendant remained owner of all the island, his understanding with the township regarding the bridge would be important. But it needs little consideration here because the rights of the general public, as represented by plaintiffs, other island home owners and all who have occasion to go on the island, have intervened. Whether a public road may have privately owned stretches on it is of more interest than the private controversy between defendant and the township.
The fact that lot 100 became part of the township highway system, by formal dedication through deed and acceptance through work done by the highway commissioner, needs no elaboration. Crosby v. City of Greenville, 183 Mich. 452; 1 Comp. Laws 1929, § 3935.
Bridges and culverts are part of the roads upon which they are located and are governed by the law applicable to roads. 1 Comp. Laws 1929, § 4522; In re Claim of Moross against Hillsdale County, 242 Mich. 277; 4 R. C. L. p. 195. The bridge forms the only means of pedestrian or vehicular communication between the mainland and the island. It is a way of necessity connecting two highways accepted by the township as parts of the highway system. The whole of the road need not be worked in order to be accepted by the public. It would seem plain under the highway law that, by accepting both termini as public roads, the township also accepted the bridge necessary to join them to the public system*
But there is another principle involved, which is well established at common law although we have no cases in point in this State. The general rule has been stated:
“A private bridge is one erected by one or more private persons for their own use and convenience. But whether a bridge is public or private depends more on the use to which it is subjected than on who the builder was. Hence, if an individual builds a bridge and the public uses it, and it becomes a public utility, the public authorities must repair it as it is then a public bridge. However, if a private bridge is erected by one for his own benefit and so continued, although the public uses it, if it is not of public utility, the county need not repair it.” 9 C. J. p. 423.
“In presuming that bridges, which are of benefit to the public have been accepted by the public, effect is given to the familiar principle that' acceptance may be inferred from the beneficial character of the grant.” 1 Elliott, Roads and Streets (4th Ed.), §33.
Perhaps the pioneer case in this country is State v. Town of Campton, 2 N. H. 513, in which the court said:
“It seems to be well settled, that a bridge, though not erected by the public, may still become a public charge in respect to its repairs.
“The true test seems to be, that the bridge, if dedicated to the public, if used by the public, and found to be of public utility, should not continue a burthen to the individuals who built it. # * *
“A different doctrine would damp the enterprise and liberality of individuals; and when a gift of the above character is thus tacitly received and beneficially employed, the receiver ought to take the burthen with the advantage and make all needful repairs. * * #
“Though the use and repairs of it by the public may have been under a protest against their liability, and for a shorter period than 20 years, the liability is still fixed, if the bridge be not indicted as a nuisance and be used by the public so long and so much as to evince its usefulness to them.”
In discussing the rule in England, Lord Coleridge remarked in Queen v. Inhabitants of the County of Southampton, 19 Q. B. D. 590, 601 (56 L. J. M. C. 112, 57 L. T. R. 261, 16 Cox, C. C. 271):
“We also think that the law laid down in those cases is all the stronger if the bridge about which the dispute arises is part of an existing highway, and has its termini in the highway; the argument for the prosecutors would be much more cogent in such a case, for if the bridge were not useful to and used by the public, it would be a nuisance if built in the public highway. ’ ’
Other authorities are: Township of Newlin v. Davis, 77 Pa. 317; State, ex rel. Winterburg, Trustee, v. Demaree, 80 Ind. 519; People, ex rel. Corey, v. Commissioners of Highways, 158 Ill. 197 (41 N. E. 1105); County of Tattnal v. Newton, 112 Ga. 779 (38 S. E. 47); Chesapeake & Ohio R. Co. v. Jennings, 98 Va. 70 (34 S. E. 986); Board of County Commissioners, Cloud County, v. Board of County Commissioners, Mitchell County, 75 Kan. 750 (90 Pac. 286); Requa v. City of Rochester, 45 N. Y. 129 (6 Am. Rep. 52); Ann. Cas. 1914 A, 550, note; 4 R. C. L. p. 220.
These authorities amply support a rule that a bridge, although built by an individual, which is á necessary link in a highway, is a part of the system itself and a public bridge. The suggestion in King v. Inhabitants of the County of Bucks, 12 East’s T. R. 192 (104 Eng. Repr. 76), is pertinent that a bridge in a highway is as public as the highway itself.
It will also be noted that many of the cases support the doctrine that mere acquiescence, by permitting continuance of a privately constructed bridge in a highway, is sufficient acceptance by the public; that if the public authorities desire to reject the bridge they should bring proceedings to abate it as a nuisance.
We think that, by the acceptance and operation of both the approaches to the bridge as a highway, the township accepted the bridge as part of the public road system and is liable for its maintenance.
Decree reversed and one will be entered in accordance with this opinion, with costs to plaintiff and defendant Van Syclde.
Nelson Sharpe, C. J., and Potter, North, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Wiest, J.
In the bill of complaint filed herein against defendants, Cecelia Lisauis alleged her husband Tony, a factory employee, held a certificate of life insurance to the amount of $1,500, issued by the defendant John Hancock Mutual Life Insurance Company, in which his brother, Frank Lisauis, was designated beneficiary; that on March 6, 1944, her husband became ill and by written certificate designated her as the beneficiary and directed her to attend promptly to proper notification of the change. She also alleged that her husband was taken to a hospital and on March 11th died; that by reason of her attendance at his bedside the change of beneficiary was not brought to the attention of the insurance company until March 23, 1944. She asked the court to adjudge her the beneficiary.
Defendant Frank Lisauis, the original beneficiary, by answer, left plaintiff to prove the execution of the alleged direction changing the beneficiary. The defendant insurance company, by answer, also left plaintiff to prove execution of the alleged writing changing the beneficiary and, by cross bill, asked the court to require the two beneficiary claimants to interplead as to their alleged rights to the insurance.
Under the insurance, the insurer paid the funeral expenses of the deceased to the amount of $250; by consent of the parties paid $100 as attorney fee and, by order of the court, paid into court the sum of $1,150, to be awarded by the court to the beneficiary entitled thereto. '
In the cross bill of interpleader the defendant insurer set up the group policy in suit providing in part as follows:
“Subject to the terms of this policy applicable hereto, upon receipt of due proof on the company’s prescribed forms at its home office of the death during the continuance of this policy or any renewal thereof of an employee while insured hereunder for the group life insurance, the company shall pay to the beneficiary of record of such employee the sum of $1,500. * * *
‘ ‘ The employee may from time to time change the beneficiary by filing written notice thereof, accompanied by his certificate, with the insurance company’s office of the branch or plant of the employer where he is employed. * * * Such change shall take effect upon indorsement by an authorized representative of the company on the certificate, and not otherwise. * * *
‘ ‘ The company may, at its discretion, deduct from the sum payable on account of the death of an insured Employee.an amount not to exceed $250 to be paid to any person or persons, other than the employer, appearing to the company to be equitably entitled to the payment by reason of having incurred expenses on behalf of the employee or for his burial; the liability of the company will thereby be completely discharged to the extent of the amount so paid.”
The answer in the nature of a cross bill then set up that the cross-defendant “Frank, Lisauis has made claim to the proceeds of said insurance on the ground that he was the designated beneficiary of said certificate of insurance at the time of the death of the said insured Tony Lisauis.”
The insurer admits it has no claim upon the insurance and is willing to pay the amount due thereon to the person or persons as the court should direct.
In answer to the cross bill of interpleader plaintiff stood upon her original bill of complaint. In answer to the cross bill of interpleader defendant Frank Lisauis claimed payment should be made to him as the beneficiary.
Attorneys for plaintiff moved for decree in her favor on the pleadings. The court filed an opinion granting a decree in favor of plaintiff but in a supplemental opinion the court granted leave to plaintiff to file an amended bill of complaint- to ‘ ‘ clarify the situation with a view of having pleadings present upon their face the exact situation as to whether or not everything was done by the insured and by his proposed beneficiary that could have been done, with the single exception of delivering the certificate of insurance and his request for a change of beneficiary before his death.”
Thereupon plaintiff filed a cross bill of complaint to the cross bill of complaint of the insurance company, alleging issuance of the certificate of insurance under a group policy of insurance to her husband; that he became ill and executed the aforementioned certificate of change of beneficiary; alleged reasons why there was delay until after the death of her husband in presenting the certificate and the writing changing the beneficiary and asked the court to adjudge her the lawful beneficiary and entitled to the proceeds of the insurance. Frank Lisauis moved to dismiss plaintiff’s cross bill of complaint.
The court in the decree stated that “from the facts set up in the cross hill of Cecelia Lisauis, and admitted by the said Frank Lisauis, pursuant to his motion for a decree upon the pleadings, the said Cecelia Lisauis is entitled to a decree in accordance with her cross bill,” and awarded plaintiff the sum deposited in court. The motion of defendant Frank Lisauis to dismiss Cecelia Lisauis’ amended cross bill was not an admission by him of the alleged facts set up by plaintiff, except for the purposes of the motion.
No proofs were taken in the case. Upon examination of the pleadings plaintiff was required to prove execution and notification of the alleged change of beneficiary. The court was in error in entering a decree upon the pleadings. The decree entered is reversed and the case remanded to the circuit court for hearing on proofs. . Costs to defendant Frank Lisauis.
Stare, C. J., and North, Butzel, Bushnehl, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Bushnell, J.
Plaintiff Elmer C. Di'eterle, executor of the last will and testament of Kittie Pearl Cotcher, deceased, sought a decree setting aside a deed executed by Mrs. Cotcher, conveying lake property in Commerce township, Oakland county, Michigan, to her daughter, Inez I. Cowley.
Plaintiff charged in his bill of complaint that the property in question is the only asset in the decedent’s estate and that he had arranged to sell it to Herman Rohde for the sum of $3,000, after securing consent in writing from the Cotcher heirs, which money is now in his hands. He further stated that defendant Ora C. Farmer, an undertaker, filed a claim in the amount of $268 covering the funeral expenses of Irene Cooper, deceased, a daughter of Mrs. Cotcher, which he contested; that at the hearing on this claim before the referee, defendant Verna Pearll produced the instrument in question and stated, although she realized Mrs. Cotcher had intended that half of her property should pass to her grandson, Lester James Cooper, as provided in the will, in the event plaintiff would consent to payment of the Farmer claim, the deed to Inez I. Cowley would not be placed on record and would be destroyed.
The deed contained the provisions that the grantor would, “warrant and defend the same against all lawful claims whatsoever, except the grantee herein agrees and assumes to pay my burial expense, and in addition, thereupon, to pay the sum of $¿68 to Ora C. Farmer for burial of my daughter, Irene Cooper, deceased, within six months after my death. ’ ’
Plaintiff alleged that the instrument was never intended by the grantor to be a deed and was not delivered to the grantee but was procured through fraud motivated by defendants Pearll and Farmer, for the purpose of collecting the Cooper funeral bill, which otherwise might have remained unpaid. Verna Pearll was also named defendant in her capacity as administratrix of the estate of Inez I. Cowley, deceased, and the Cowley heirs were also joined as defendants, on the theory that they knowingly or otherwise participated in an attempted fulfilment of the alleged fraud and as legal heirs of Inez I. Cowley, deceased, might have some “color of right to the property.”
Defendants in their answer denied the charge of fraud and averred that, prior to the execution of the deed, Mrs. Cotcher had suggested the execution and delivery of a note secured by a mortgage on the property in question, and that a deed be given to Inez I. Cowley, subject to that mortgage, but that in lieu thereof it was “suggested” that the deed contain the quoted provision for the payment of the Farmer bill.
Verna Pearll was called as an adverse witness by the plaintiff. She described herself aa being an accountant for 22 years, and stated that she had made out income tax reports for defendant Farmer, but she denied being in his employ at the time the deed was executed, i.e., September 13, 1941. She testified to one payment of $5 by Mrs. Cotcher to Farmer, and later, when questioned by the court, to two payments.
This witness “handled the affairs of George Cotcher’s estate,” the husband of Mrs. Cotcher. When asked if she had ‘ ‘ another transaction with. the widow, Kittie Cotcher,” she stated:
“Well, it was planned— * * * That as soon as the estate of George Cotcher could be closed up so that Mrs. Cotcher could save her home, she was going to deed the. house which she lived in to her daughter. ’ ’
She testified the deed had been prepared at the request of Mrs. Cotcher by a lawyer, secured by the witness, and that it was executed in the home of Inez I. Cowley, in the presence of defendants Frank Cowley, Mrs. Cotcher’s daughter, Inez, the grantee in the deed, and Inez Mae Cowley, granddaughter of Mrs. Cotcher, and herself. She stated that after Mrs. Cotcher had read and signed the deed it was handed to Frank Cowley, who also read it and witnessed it. He handed it to the witnes.s, Pearll, who again handed it to Mrs. Cotcher, who then handed it to her daughter, Inez I. Cowley, the grantee, while the witness was saying:
“Inez, you must remember that in accepting this deed you will have to take care of your mother’s funeral expenses and also the money she owes Mr. Farmer — pay the money she owes Mr. Farmer.”
The witness said she took Mrs. Cotcher back to her home and then returned to the home of Inez I. Cowley, where “she gave me the deed and told me she would call me when she wanted it recorded. ’ ’
Miss Pearll took the deed to her office in Detroit, had it acknowledged before a notary, who was not present when it was executed, and then placed it in her safety deposit box. She produced it at the hearing on claims in the Cotcher estate, and it was re corded by Mildred Cowley, one of the grandchildren, the next day, after ■ the hearing. Herman Rohde testified as follows:
“I did not know Kittie Cotcher in her lifetime. I made arrangements to buy this property from Mr. Dieterle, the executor of the estate of Kittie' Cotcher. I went to Prank Cowley first and asked him about the place and he said that I can’t sell the place to you. You have got to see my attorney, Mr. Dieterle and both girls told me that. That is why I came in contact with Mr. Dieterle. I bought the place from Mr. Dieterle for $3,000 cash with the understanding that I would get my deed later. In June of 1943, I had a conversation with Verna Pearll at this place where I am now living. She said that Mr. Dieterle was not entitled to sell me the place so I had better buy the place from her. She mentioned the- price of $3,000 and she turns around and asks more later on after I had fixed the place up. ’ ’
At the conclusion of plaintiff’s case, defendants moved to dismiss the bill of complaint, because of the absence of testimony ‘1 of any kind of any fraud, deceit or overreaching.”
The trial judge filed a short written opinion in which'he stated:
“It is the claim of the plaintiff in this case that, the deed was secured by fraud and that there was no delivery or acceptance.
“At the conclusion of plaintiff’s proofs, defendants, through their attorney, made a motion to dismiss the case because of plaintiff’s failure to establish his claims.
“There was no evidence whatever of fraud and the proofs clearly indicate that there was delivery and acceptance of the deed.”
Plaintiff has appealed from the decree dismissing his bill of complaint. Despite the many irregulari ties suggested by this record, we are limited to consideration of appellant’s only contentions that.the deed in question was procured through fraud and there'was no valid delivery.
The testimony regarding delivery stands uncontradicted, and, as suggested by the trial judge in a colloquy in the record, the proofs as to fraud are only inferential. Although “fraud need not be shown by direct proof but may be proven by inference from facts and circumstances,” Richardson v. Ball, 300 Mich. 424, 435, nevertheless “fraud will not be presumed and cannot be lightly inferred but must be established by a preponderance of evidence,” Fahey v. Pell, 310 Mich. 280, 281, and authorities therein cited.
The questions of Farmer’s claim and Rohde’s rights, if any, are not before us and we express no opinion as to either.
Plaintiff failed to sustain the burden of proof of fraud and lack of delivery. The decree dismissing the bill of complaint is affirmed, with costs.
Stare, C. J., and Noeth, Btttzel, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case.
See 3 Comp. Laws 1929, § 14220 (Stat. Ann. §27.915).—Re-porter. | [
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Reid, J.
(dissenting). This is an action brought by plaintiff appellee pursuant to 2 Comp. Laws 1929, §8416 (Stat. Ann. §17.150), against defendant contractor, immediate employer, to recover, as indemnity, moneys paid for redemption of liability under' an award by the department of labor and industry. Prom- judgment for plaintiff, defendant appeals. The case was tried before the circuit judge without a jury.
Plaintiff Currier Lumber Company made an arrangement with defendant Yan Every to haul cement blocks. Yan Every procured Pepple to drive one of Yan Every’s trucks for a compensation of half the gross receipts. Plaintiff claims Pepple was an employee of Yan Every, who claims Pepple was his partner. Pepple claimed that he received a compensable injury on August 9, 1939, and filed a claim with the department of labor and industry for compensation, on which an award was made November 2, 1939, in pursuance of which award the plaintiff paid Pepple weekly compensation to and including April 14, 1942, a total of 140 weeks at $18 a week, aggregating the sum of $2,520, and medical expenses in the sum of $195.73. On April 6, 1942, while the award was in full force and effect as between Pepple and plaintiff, they entered into an agreement filed with the department of labor and industry which on May 8, 1942, ordered a lump sum payment in redemption of remaining liability in the sum of $1,766, so that the plaintiff paid the total sum of $4,481.73, and instituted this action for indemnity against the defendant.
• The plaintiff had elected to come under the workmen’s compensation act but defendant Yan Every had not so elected. ’ Defendant claims that he and Pepple were partners, though Yan Every never filed any certificate of partnership' and on August 31, 1939, signed a statement prepared by a representative of the Fidelity & Casualty Company of New York, for the benefit of which company this suit is brought, which statement contains matter tending to support plaintiff’s claim that no such partnership existed.
The circuit judge after reviewing the testimony concerning the relationship between Pepple and Yan Every found that there was no intention to form a partnership between them and emphasized the fact that the repairs to the truck and insurance premiums were paid by Yan Every, in which losses Pepple did not share. The circuit judge also found that the method employed simply determined Pepple’s compensation for driving the truck. For the proposition that persons can participate in the profits of a joint venture or contract without becoming partners, the circuit judge in his finding cites Winters v. Miller, 227 Mich. 602, and further cites Lobato v. Paulino, 304 Mich. 668, for the proposition that sharing of gross receipts does not of itself establish a partnership. There is competent testimony to support the finding by the trial judge that no partnership existed. Such finding is not against the preponderance of evidence. On a new trial, it shall he considered as an adjudicated fact that no such partnership existed.
Defendant claims that in order to establish liability against him he should have received notice of the proceedings before the department of labor and industry and that he should not be hound by the action of the department of labor and industry in adjudicating the validity of Pepple’s claim in the absence of notice to him, Yan Every. It is further defendant’s claim that the statute requires such notice to be given him, but that if the statute shall be construed not to require such notice, that part of the statute requiring indemnity should be held unconstitutional by reason thereof.
The trial court in his opinion said, “It is also pointed out that Yan Every did not elect to come under the statute. He is not in a position to claim any of its benefits.” Judgment for plaintiff was entered in circuit court on May 29, 1944, on the assumption that the award by the department was binding on Yan Every.
The,motion for a new trial was overruled.
Defendant did not raise the question of unconstitutionality before the trial court nor claim error upon the ground of failure of the trial court to hold unconstitutional^ Comp. Laws 1929, §8416 (Stat. Ann. §17.150), and plaintiff claims that for that reason the question of the alleged unconstitutionality of that act is not properly before this court for review. However, defendant Yan Every did claim before the trial court that he was entitled to notice under Const. 1908, art. 2, § 16, and claimed that for want of notice plaintiff’s action must fail.
Defendant’s right to notice of any proceeding before he could be bound by the result does not depend upon any statute; it is guaranteed to him by the State Constitution. “Every man is entitled to his day in court before his rights can be finally disposed of, and even the legislature could not deprive him of the right.” Chief Justice Cooley in Ehlers v. Stoeckle, 37 Mich. 261, 263. Many decisions of this Court can be cited to like effect.
“The due process of law required by the Constitution means that notice or summons by which a party is tendered his day in court, with the right to frame an issue and be heard before a judgment can be rendered or execution issued which shall take away his liberty or property.” Rouse, Hazard & Co. v. Wayne Circuit Judge, 104 Mich. 234, 239 (27 L. R. A. 577, 53 Am. St. Rep. 457).
We do not find the act in question nor any part thereof unconstitutional for any ground set forth in the record.
We are not required to decide in the instant case what effect the giving of notice would háve for the reason that no testimony was offered or claim advanced by plaintiff that notice had been given.
We have in mind the case of Grand Rapids Lumber Co. v. Blair, 190 Mich. 518, in which we say, at p. 526:
“This case involves a relation of indemnitee and indemnitor, in which a liability over is placed upon the original tort-feasor whose negligence caused the injury, a relation which may be created by contract or legislation for protection of the party whb, though not actively guilty of the tort, may, by law, be liable therefor to the injured party. In such cases’ the weight of authority indicates that a former judgment against the indemnitee, in which notice of the litigation is not given to the party who may be liable over, is adequate to create á right of action against the latter, and admissible as prima facie proof , of his liability, though the omission to give notice gives him the right to mate any defense which he could have made in the former action, with the burden of proof shifted to him. ’ ’
See, also, page 528 of the same opinion.
The instant case involves the liability of a.con7 tractor who is made an indemnitor by the statute in question. Van Every is liable as indemnitor under the statute though he did not come under it. His contractual relation with plaintiff, who is under the statute, is sufficient to hold him as ■ indemnitor though Van Every himself might not be liable to Pepple.
The trial court entered a judgment for the full amount of plaintiff’s claim. Proof of the proceedings before the department amounted at most to a prima facie showing of an injury to Pepple compensable by reason of the employment and amount of damages. Van Every is entitled to contest all phases of plaintiff’s claim not conceded by defendant.
Concession was made by defendant on the trial that the amount claimed by plaintiff was paid by plaintiff to Pepple in pursuance of an award by the department, whereupon the following occurred:
“The Court: It is also understood that there would be a liability if this man was working for Van Every, but the difficulty is that he was a partner. Is that right?
“Mr. Schulte: That is right.
“Mr. Birge: I think that is the plaintiff’s case then.
“The Court: Then it would be up to him to show that there was a partnership relation.
“Mr. Birge: All right. We rest then, your honor.” .
Testimony was then offered on the question of the relationship between Van Every and Pepple, whether of partnership or of employment.
Defendant did not rest his case nor state that he had no other defenses. The trial court filed an opinion finding Pepple an employee and not a partner of Van Every, that Van Every was not entitled to notice of the proceeding before the department, and gave judgment for the full amount paid by plaintiff to Pepple. However, defendant had by his answer denied the allegation as to an actual injury to Pepple in his employment and had not conceded that he was liable to the full amount paid Pepple by plaintiff. In his answer he denied that plaintiff was entitled to be indemnified in the amount paid by plaintiff, $4,481.73. In his grounds for appeal, defendant claimed the trial court was in error in denying the motion for a new trial.
The trial court seems to have assumed that the award of the department was conclusively binding on defendant as to the actuality of the injury to Pepple in the employment by plaintiff and extent of his injuries. Concession by defendant of the making of the award and of the payment under the award did not waive proof of the actuality of the injury in' the course of the employment nor of extent of injury.
Defendant was without his day in court as to his defenses. He did state the defense of nonemployment but the record contains no waiver on his part of his other defenses and he did not rest his case. Defendant claims the trial court should have granted a new trial so that he could present completely his defenses and complains that the only matter he was permitted to go into was the matter of partnership.
The judgment appealed1 from should be reversed and a new trial ordered in accordance with this opinion. Costs to defendant.
Boyles, J.
I agree with Mr. Justice Reid that Pepple was an employee of Van Every and not his partner. However, I do not agree that the defendant is entitled to a new trial on the grounds urged for reversal, nor do I agree that we are not required to decide in this case what effect the failure to give notice to Van Every has in the instant case. It is conceded Van Every had no notice of the proceedings in the department of labor and industry, and that he was not a party in such proceedings. In the instant case the appellant seeks reversal on the ground that notice to him of the proceedings for compensation was necessary in order to create any liability against Mm as indemnitor under tbe statute; and further claims that if be was not entitled to sucb notice and an opportunity to appear before tbe department tbe indemnity statute is unconstitutional.
Tbe fact that Yan Every was not given notice and an opportunity to defend bis liability as indemnitor before tbe department of labor and industry did not deprive Yan Every of bis day in court, before bis rights were adjudicated. He has not been deprived of bis property, nor bis day in court, without due process of law, and under a proper construction of tbe act tbe fact that be was not given a day in court before tbe department does not render tbe indemnity provision unconstitutional on that ground. He has bad bis day in court in tbe case before us, and bis failure to contest bis liability as an indemnitor on tbe grounds available to him is no basis for granting him a new trial.
Plaintiff herein, having paid compensation to Pepple, brought the instant suit against Yan Every to recover tbe amount paid, by virtue of 2 Comp. Laws 1929, §8416 (Stat. Ann. §17.150). This section of tbe workmen’s compensation law provides that where any employer who is subject to tbe provisions of tbe act (plaintiff herein) contracts with any other person who is not subject to tbe act (Yan Every) to execute work undertaken by tbe principal, tbe principal (plaintiff herein) shall be liable for compensation to any workman employed by tbe contractor in tbe execution of tbe work the same as though tbe workman bad- been immediately employed by tbe principal. Subdivision (b) of this section then provides:
“Where tbe principal is liable to pay compensation under this, section, be shall be entitled to be indemnified by the contractor or subcontractor as the case may be, but the employee shall not be entitled to recover at common law against the contractor or any other person for any damages arising from snch injury if he takes compensation from such principal. The principal, in case he pays compensation to the employee of such contractor, may recover the amount so paid in an action against such contractor.”
Fundamentally, this provision of the workmen’s compensation act has in the main the same objective sought by 2 Comp. Laws 1929, §8454 (Stat. Ann. §17.189), another section of the workmen’s compensation act, which provides that where a compensable injury is caused under circumstances creating a legal liability in some person other than the-employer, and the employer pays compensation under the act, he may enforce the liability of such other person. The objective sought by both of these provisions is to afford a right in court to seek recovery by one who pays compensation under the act, from another, a third person who was not a party in the proceedings before the department. "While there are essential differences- between the form of action and the defenses under each of these two provisions of the act, both of them afford a day in court for one against whom ultimate liability is claimed. An indemnitor or a third party has his day-in court in a judicial proceeding wherein the one who has paid the compensation must bring an action against the third party or against the indemnitor to determine his liability. The award of compensation by the department is not a final adjudication of that liability. For that reason it cannot be said that Van Every is being deprived of his property without due process of law in the case now before us.
This court has passed upon both of these provisions of the act. In Michigan Boiler Sheet Iron Works, for use and, benefit of American Mutual Liability Co., v. Dressler, 286 Mich. 502, the court held that the principal who had paid funeral expenses pursuant to an award of the department of labor and industry could recover in assumpsit against the contractor under the indemnification provision of 2 Comp. Laws 1929, §8416 (Stat. Ann. §17.150). In that case the defendant contended that this (the indemnification) provision of > the act contemplated a tort action, not an action in assumpsit. The court pointed out the difference between an action under the indemnification provision and one under the third party (subrogation) 'provision, supra, in the following language (pp. 511, 512):
“Defendant’s third point concerns the form of action. He contends that a tort action is contemplated, not an action in assumpsit, and that he stands in the same position as a negligent third party whose negligence is responsible for an injury to an employee for which an employer must pay compensation. Section 8454, 2 Comp. Laws 1929 (Stat. Ann. §17.189), provides that the employer may be subrogated to the rights of the injured employee against the negligent third party if the employee elects to take compensation from his employer. The situations are not parallel, however, as defendant, as the employer, cannot be considered as a third party as to his employee within the meaning of said section 8454. See Bross v. City of Detroit, 262 Mich. 447. Moreover, defendant’s liability .under section 8416 arises independently of any negligent act performed by him. The liability is created by statute, the result of which in effect creates an implied promise that the contractor, who is not subject to the provisions of the compensation act, will indemnify the principal for sums paid by latter in compliance with subdivision (a) section 8416. Although subdivision (b) of the secdoes not state the specific form of action which shall be instituted by the principal against the contractor, we hold assumpsit to be the proper form.”
In this case the defendant, Van contract to perform work for plaintiff herein and thereby-he became subjected to an action by plaintiff to recover such sums of money as plaintiff was compelled to pay for compensable injuries to workmen under the direct employ of the defendant. Both the indemnification and the third-party subrogation provisions of the statute herein discussed give rise to such a right of action by one who is compelled to pay compensation. There is no injustice in providing a remedy in court whereby one who pays compensation may seek recovery against one who is actually the real party in interest, the one on whom the ultimate liability should rest. Constitutional requirements relied on by appellant herein for reversal are met when he is allowed his day in court to contest Ms liability and defend himself against plaintiff’s claim for indemnification. In such an action all defenses which were available to plaintiff before the department and which would have been available to Van Every on plaintiff’s behalf had Van Every been a party in the compensation proceeding may be advanced by Van Every to defeat recovery against him.
Under the third-party subrogation provision (2 Comp. Laws 1929, §8454 [Stat. Ann. §17.189]), recovery may be had against a third-party wrongdoer for the amount of compensation paid (City of Grand Rapids v. Crocker, 219 Mich. 178; Overbeek v. Nex, 261 Mich. 156), and the defendant may interpose any defense which would have been available had suit been originally brought against him, including contributory negligence of tbe employee. Postal Telegraph Cable Co. v. Carpenter, 258 Mich. 370; Overbeek v. Nex, supra. Tbe distinction between suits bottomed on tbe tbird-party section of tbe act and tbe indemnification provision applying to principals and contractors is pointed out in Michigan Boiler & Sheet Iron Works, for use and benefit of American Mutual Liability Co., v. Dressler, supra, as follows (pp. 512, 513):
“Defendant submits that if plaintiff can maintain this action (for indemnification), tbe effect thereof is to subject him to tbe provisions of tbe act although be has made no election to be liable thereunder. Assuming defendant’s claims in this particular to be true, no provision of constitutional or other law has been brought to our attention which is claimed to be violated. In any event, defendant’s argument is fallacious in that it assumes that a compulsory liability is imposed upon him. It is true that be has made no formal election to become generally subject to tbe act in tbe manner provided by 2 Comp. Laws 1929, § 8412 (Stat. Ann. § 17.146). He did, nevertheless, accept a contract to perform work under circumstances creating bis liability under one section of tbe statute. His acceptance of tbe contract was voluntary, not compulsory, and was accompanied by tbe burden imposed by tbe section of tbe act in question, which was likewise voluntarily assumed as an incident to entering into this particular contractual relation.”
That there may be no misunderstanding, we concede that there are, essential differences between suits under tbe two statutory provisions herein discussed. Liability of a subcontractor to indemnify tbe principal, under tbe indemnification provision, rests primarily on contract, tbe contractor having contracted to do tbe work of tbe principal. Liability of a third party, under tbe subrogation pro vision in tlie act, is not based on a claim of contractual relationship. As we have held, the suit to fasten liability on the contractor for indemnity may be in assumpsit to recover the amount paid. However, the amount fixed by the department is not res judicata as to the amount of liability of the contractor ; nor. is his liability itself finally adjudicated by the department. He may claim as a defense in •the suit against him for the indemnity that the amount is excessive; he may claim a complete want of liability on any of the grounds that might have been interposed by the principal in the proceeding-before the department. Thus having his day in court, the fact that he was not a party or given notice of the proceedings in the department is not a bar to the suit in court. However, the amount of compensation paid by plaintiff herein under the workmen’s compensation act is prima facie evidence of plaintiff’s damages, subject to the right of defendant to meet it by any competent evidence (Grand Rapids Lumber Co. v. Blair, 190 Mich. 518; City of Grand Rapids v. Crocker, supra), and the plaintiff may enforce liability against the third party only to the extent that he has paid compensation and no further. Albert A. Albrecht Co. v. Whitehead & Kales Iron Works, 200 Mich. 109.
This case was heard by the circuit judge without a jury, the amount of compensation paid by plaintiff was not in dispute, and judgment was entered for plaintiff for the amount of the claim. The only two issues raised for reversal are that Pepple was a partner, not an employee of Van Every; and that Van Every is not liable because he was not given notice and an opportunity for defense before the department of labor and industry. Neither position is sound.
Mr. Justice Reid writes that the defendant has not had his day in court and that he should be granted a new trial for that, reason. The defendant now complains on only one ground of being deprived of an opportunity to present his case, namely, that he did not have full opportunity to contest the question of lack of notice of the proceedings before the department of labor and industry. We quote from his brief:
“8. The Court Should Have Granted the Motion For New Trial ,.
“Inasmuch as plaintiff took the position throughout the trial that no notice or notices of any kind were necessary to defendant, and the court sustained the position of the plaintiff the court should have granted defendant’s motion for- a new trial so that defendant would have had an opportunity to present completely his defenses on this question.
‘ ‘In view of the rulings of the court and the position taken by the plaintiff about the only matter defendant was permitted to go into was the question of partnership.
“True, defendant was permitted to introduce some testimony showing that he received no notice of the proceedings before the department of labor, but under the contention of plaintiff, and the rulings of court, defendant was denied opportunity to fully try these matters.
“In his statement denying the motion for new trial the court ruled the question of notices immaterial, leaving only the question of partnership to be decided.”
The circuit judge correctly held that as a matter of law the defendant was not entitled to notice of the proceedings before the department of labor and industry. The defendant had not elected to come under the provisions of the workmen’s compensation law and was neither a proper nor a necessary party in the proceedings before the department. Furthermore, the defendant at the beginning of the trial stipulated orally in open court that the only issue to be decided was, whether Van Every Pepple were partners. We quote from the record:
“Mr. Schulte (attorney for court please, to make the matter short, our contention is, of course, that the defendant and Andrew Pepple, who was injured, were mutual partners on understanding between them to engage in this trucking business for the delivery of cement blocks for the Currier Lumber Company, and if so, Van Every would not be responsible.
“The Court: Then so far as that is amount and all, that can be stipulated. The only thing you want to try out, is the question of whether these men are partners! ,.
“Mr. Schulte: We don’t dispute the paid or that the award was made by the board.
“The Court: I am asking the question.
“Mr. Birge (attorney for plaintiff): It is not admitted in the answer, your honor. I am prepared to prove it unless it is admitted on the record.
“The Court: It is a harmless question. We might as well have our only issue.
“Mr. Schulte: To that extent it will be admitted.
“Mr. Birge: May it be stipulated on the record that an award in form and substance as set forth in our declaration was entered!
“Mr. Schulte: Yes.
“Mr. Birge: And that subsequently a compromise was made under which final payment was made!
“Mr. Schulte: Yes.
“Mr. Birge: And pursuant to that award, there was paid to Mr. Pepple, by the Currier Lumber Company, the sum of $4,400 and some odd dollars!
“Mr. Schulte: Yes.
“The Court: It is also understood that there would be a liability if this man was working for Van but the difficulty was a that right?
“Mr. Schulte:
Thereupon the then sworn and testified in his own behalf. During the course of his testimony the defendant permitted by the court to testify that he had never received any notice of the proceedings before department of labor and industry. This is admitted by the plaintiff. The issue of law as to the necessity for notice was squarely presented to the court at the conclusion of the defendant’s case. We again quote from the record:
“Mr. Birge (attorney for plaintiff): our contention no notice of any kind is necessary a prerequisite to liability under the statute as we proceeding under in this case.
“The Court: And you are
“Mr. Schulte (attorney is an absolute necessity.”
On that record the defendant rested his case. There is no merit in the present claim that the only matter the defendant was permitted to go into was matter of partnership. Defendant’s counsel in open court eliminated any other defense except as to whether Van Every and Pepple were partners, and question of law in regard to the necessity for notice to the defendant of the proceedings in the department of labor and industry. There is no merit in either claim and there is no occasion to grant the defendant a new trial.
The judgment is
Starr, C. J., and North, Butzel, Bushhell, and Sharpe, JJ., concurred with Boyles, J. The late Justice Wiest took no part in the decision of this case.
The powers and duties of the industrial accident board, here referred to, were transferred to the department of labor and industry and the board abolished. See 2 Oomp. Laws 1929, § 8312 (Stat. Ann. § 17.3).—REPORTER. | [
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Btjshnell, J.
The parties hereto were married on February 12, 1938, and have three sons, the first being born on November 13, 1938, the second on May 10,1940, and third on May 31, 1941. Plaintiff prior to her marriage had been working in her father’s office, and continued to do so for a short time thereafter. Defendant, who. had recently graduated in dentistry, had been in the employ of another dentist, earning about $50 per week, and was still in debt for his college education. A few months after the marriage he opened his own dental office, and the parties lived in three back rooms of the floor on which the office was located.
About a year and a half later the defendant entered1 into a contract for building a new home into 'which the family moved, the -former location being remodeled and the entire space thereafter used as a dental office. As a result of hard work and application to his profession, defendant’s practice grew until he finally had in his employ three women assistants. Apparently this did not meet with the approval of plaintiff and she became jealous of defendant’s application and attention to his office affairs and charged him with being more considerate of his assistants than of his wife. Some of the arguments became rather heated and, after a separation of the parties for a short time, a reconciliation was effected by the joint efforts of the parents.
On June 10,1943, plaintiff filed a bill of complaint seeking a divorce on the grounds of extreme cruelty and physical violence. On the witness, stand, despite defendant’s denials, plaintiff insisted that on one occasion, at least, he struck her. Defendant’s explanation is that plaintiff became so abusive that, in order to quiet her, he “pushed her on the bed.” Considerable testimony was received pro and con regarding the marital troubles, all of which indicates that neither party made the necessary effort to compose their difficulties.
After attempting to effect a reconciliation between them the trial judge observed that, although the proofs might have been sufficient to sustain a decree of divorce if the case were not contested, he was convinced that the defendant was devoted to his wife and sons, and conld eventually effect a reconciliation provided the wife adopted the proper attitude. He stated that the proofs were insufficient to support a finding of extreme cruelty justifying the severance of the marriage relation.
A decree was entered dismissing plaintiff’s hill of complaint, from which she has appealed,' and she seeks a decree of divorce in this court.'
"We have examined the testimony de novo with the result that we agree with .the conclusion reached by the trial judge. The three sons which have come to bless the union of the parties are entitled to have the family relations maintained, which, according to the father of each party, is within the realm of possibilities. We are impressed by the zeal' 'and energy of the defendant, the difficulties he encountered in establishing himself, as well as the strain under which, plaintiff maintained the home. There is, however, no reason why these two young people should not be able to compose their very insignificant and minor differences and find considerable happiness in life.
The law is clear in such instances. As stated in Miller v. Miller, 308 Mich. 600, 602:
‘ ‘ ‘ The law does not permit courts to sever the marriage bond, and to break up households, merely because parties, from unruly tempers or mutual wranglings, live unhappily together." It requires them to submit to the ordinary consequences. of hu-' man infirmities, and of unwise selections, and the misconduct which will form a good ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely subverting-the family relations by rendering the association intolerable. Our statutes do not confine such cruelty to mere physical violence, which, is by no means the worst injury that can be inflicted on persons of re fined sensibility, but tbe grievance of whatever kind, must be of the most aggravated nature to justify a divorce.’ Cooper v. Cooper, 17 Mich. 205 (97 Am. Dec. 182).”
The following statement in Brookhouse v. Brookhouse, 286 Mich. 151, 154, is applicable to the instant case:
“There is no inflexible rule that prevents granting a divorce upon the testimony of the complainant alone, although the right to relief in such event must be. clearly established. Murphy v. Murphy, 150 Mich. 97; see, also, Heaton v. Heaton, 186 Mich. 37. The testimony was conflicting. The trial judge saw and heard the witnesses and was able to measure their credibility. On a review of the record we are not disposed to disagree with his conclusions. Cummings v. Cummings, 50 Mich. 305; Donaldson v. Donaldson, 134 Mich. 289; Jackett v. Jackett, 229 Mich. 266; Weronka v. Weronka, 283 Mich. 493. Where the decree of divorce rests wholly upon the testimony in the case, the reviewing court ought not to reverse the determination of the trial court unless convinced that it must have reached a different conclusion had it occupied the position of the lower court under like circumstances. Nicholas v. Nicholas, 50 Mich. 162.”
This position was also taken in Chubb v. Chubb, 297 Mich. 501, 506, where the court said:
“While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing court ought not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circum stances. Brookhouse v. Brookhouse, 286 Mich. 151; Stratmann v. Stratmann, 287 Mich. 94; Westgate v. Westgate, 291 Mich. 18.”
See, also, Brewer v. Brewer, 295 Mich. 370.
The decree dismissing plaintiff’s bill of divorce is affirmed. No costs are allowed.
Starr, C. J., and North, Wiest, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Per Curiam.
We granted plaintiffs delayed application for leave to appeal the June 5, 2007, order modifying a judgment entered in plaintiffs favor. We vacate the June 5, 2007, order and remand this case to the trial court.
i
Defendant worked as a maintenance supervisor for plaintiff, a manufacturer of steel parts for the automobile and other industries, until plaintiff terminated defendant’s employment on February 1, 2006. On February 3, 2006, plaintiff brought this action against defendant, alleging that defendant embezzled and converted approximately $38,000 of plaintiffs property by selling scrap metal owned by plaintiff to a third party who paid defendant. Plaintiff sought damages under MCL 600.2919a, which permits the recovery of treble damages for embezzlement and conversion claims.
Plaintiff moved for summary disposition under MCR 2.116(0(10). Plaintiffs motion asserted that defendant had admitted the embezzlement and had failed to respond to interrogatories or a request for admissions. On September 19, 2006, the trial court granted plaintiff summary disposition of its embezzlement and conversion claims and entered a judgment of $114,091.90, with statutory interest, costs, and reasonable attorney fees to be determined. This judgment apparently reflects the trebling of the $38,030.63 that defendant embezzled from plaintiff.
On October 9, 2006, plaintiff filed a motion for taxation of costs and reasonable attorney fees. The trial court conducted hearings on the motion on November 7, 2006, and March 19, 2007. It came to light at the beginning of the hearing that plaintiffs insurer had reimbursed plaintiff for all but $5,000 of the loss it sustained from defendant’s embezzlement. Defendant argued that plaintiffs actual loss was therefore only $5,000, and that the judgment should be reduced to reflect actual damages of $5,000, with treble damages of $15,000. Plaintiff maintained that it sustained actual damages of $38,030.63 as a result of defendant’s embezzlement regardless of whether its insurer reimbursed it for the loss. Thus, the question arose whether plaintiffs actual damages for purposes of trebling under MCL 600.2919a was the amount that defendant embezzled or the difference between that amount and the amount that plaintiff was reimbursed by its insurer.
The trial court ultimately adopted the latter position, concluding that plaintiffs actual damages consisted of the $5,000 in embezzlement losses that plaintiffs insurance did not cover. In an order entered on June 5, 2007, the trial court modified the judgment, reducing the amount awarded to plaintiff to $15,000. The order also awarded plaintiff $9,740 in attorney fees and $430.93 in costs.
ii
Pursuant to MCL 600.2919a(l)(a), a person damaged as a result of another person’s stealing or embezzling property or converting property to the other person’s own use may recover three times the amount of actual damages. Plaintiff argues that “actual damages” under this statute are the amount a defendant actually embezzled. Resolution of the issue presented turns on the definition of actual damages, which presents a question of law that this Court reviews de novo. Northville Charter Twp v Northville Pub Schools, 469 Mich 285, 289; 666 NW2d 213 (2003).
The statute does not define the term “actual damages.” When interpreting statutory language, our obligation is to ascertain the legislative intent that may be reasonably inferred from the words expressed in the statute. Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). When the Legislature has unambiguously conveyed its intent in a statute, the statute speaks for itself, and judicial construction is not permitted. Huggett v Dep’t of Natural Resources, 464 Mich 711, 717; 629 NW2d 915 (2001). We give undefined statutory terms their plan and ordinary meanings. Oakland Co Bd of Co Rd Comm’rs v Michigan Prop & Cas Guaranty Ass’n, 456 Mich 590, 604; 575 NW2d 751 (1998). In those situations, we may consult dictionary definitions. Id.
Black’s Law Dictionary (8th ed) defines “actual damages” as: “An amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual losses.” Applying this definition to MCL 600.2919a, “actual damages” means the actual loss a complainant suffered as a result of a defendant’s criminal conduct. Here, there is no dispute that defendant embezzled $38,030.63 from plaintiff. Defendant did not pay back any of these funds. This figure clearly represents the actual loss suffered by plaintiff as a result of defendant’s embezzlement. The trial court initially entered a judgment awarding plaintiff three times that amount, or $114,091.90.
Upon discovering that plaintiffs insurer reimbursed plaintiff all but $5,000 of the embezzled funds, the trial court modified its judgment to reduce plaintiffs actual damages to $5,000. The definition of “actual damages,” however, does not contemplate the victim’s receipt of insurance proceeds in determining actual damages. Actual damages must exist in the first instance before the question of insurance proceeds properly arises. Once inflicted and created, actual damages do not change simply because an insurer has a contractual obligation to compensate the victim in whole or in part. The statute in question is not designed or intended to minimize a defendant’s liability for his criminal conduct if his victim had the wherewithal to purchase insurance coverage to protect itself from the criminal conduct of third parties. It is the embezzler’s misconduct, not the interplay between the embezzler and the victim’s insurer, that creates actual damages. Indeed, MCL 600.2919a is a punitive statute that provides for recovery of three times the amount embezzled. Punitive damages reflect a worthy public policy consideration of punishing dishonest defendants and setting an example for similar wrongdoers. To define “actual damages” as the amount embezzled less the amount a victim receives in insurance benefits as a result of a covered loss thwarts the purpose of the statute.
hi
We conclude that the trial court erred by modifying the judgment and reducing the amount of the judgment on the basis that plaintiffs actual damages did not include the amount reimbursed by its insurer. We therefore vacate the order modifying the judgment and remand to the trial court to reinstate the original judgment of $114,091.90. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219. We do not retain jurisdiction.
Order vacated and case remanded.
The record also reveals that criminal charges stemming from defendant’s conduct were filed in the Kalkaska Circuit Court.
The hearing apparently commenced after the sentencing hearing in defendant’s criminal case concluded. The judgment of sentence apparently included an order for restitution.
Plaintiffs insurance deductible was $5,000.
Plaintiff also asserted that it was obligated to repay its insurer pursuant to a subrogation clause in the insurance contract.
If defendant had repaid any of the funds, he might he entitled to offset the amount he repaid to determine the amount of actual damages. See, e.g., In re Hamama, 182 BR 757 (ED Mich, 1995). In this case, however, defendant did not repay any of the embezzled funds. To the extent that the record in this case includes mention of a criminal conviction and restitution order, the record does not include documents relating to those matters, and they are not at issue in this appeal.
Indeed, defining “actual damages” as the amount embezzled less any amount received as insurance proceeds in this matter would result in treble damages of $15,000, less than half the amount embezzled. Additionally, MCL 600.2919a(2) notes that the remedy provided in MCL 600.2919a is cumulative to other rights or remedies the person may have at law. Plaintiff s right to collect under an insurance policy for the loss incurred as a result of defendant’s embezzlement does not diminish plaintiffs right to recover three times the amount of actual damages under MCL 600.2919a. | [
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Bttshnell, J.
Appellant, Parker Brothers Company, Ltd., is a partnership association organized under the statute (2 Comp. Laws 1929, § 9909 et seq.), and defendant Edward J. Tisdelle is its president and general manager, owning all but two of its 5,000 shares of capital stock. Plaintiff, a former employee of the defendant company, brought suit to recover the value of 50 shares of capital stock, having a par value of $5,000. He declared upon an oral contract, including a count against the company, one against Tisdelle individually, and another against the defendants jointly, to which were added the common counts. A bill of particulars was filed to supplement the common counts, setting up $10,000 as the “reasonable value over and above' wages re ceived for services rendered as yard superintendent and for like services, 1920 to 1927.” A credit was shown as of July 23, 1928, of $1,500, leaving a balance of $8,500.
Before submitting the case to the jury, the court dismissed the count seeking to hold Tisdelle individually and the other charging him jointly with the company. A judgment was entered against the company on the jury’s verdict for $3,500. Defendant Parker Brothers Co., Ltd., appeals and plaintiff assigns error on which he relies for a new trial in the event of a reversal of the judgment. Court Rule No. 66, §8 (1931).
Plaintiff was employed in 1916 by Parker Bros., Ltd., a former company whose charter expired in 1923, and claims that about 1920 Tisdelle told him he had borrowed some money to put into the business and that he said “it was up to me to take off my coat and get busy and help make this company a success.” It is alleged that he talked about plans for reorganizing and then promised to give the plaintiff stock in the new company, in addition to his salary. A little later, plaintiff claims, there was a definite agreement as to the amount of the stock, namely, $5,000 worth, and the former conversation was in substance repeated, with the additional understanding that the stock would be paid for out of profits and would be ready for distribution in about five years. At this time plaintiff’s salary was $250 a month; two years later he asked for an increase and was given $25 more a month, and reminded by Tisdelle that he must not overlook the fact that he was to get about $1,000 a year in stock in addition to his salary. Another salary increase was given in 1925.
Plaintiff testified that he rendered services in addition to those he would ordinarily be required to perform by reason of his regular duties, such as the handling of real estate and the collection of rents, and that he worked nights and Sundays with rare exceptions. He claims that, in 1926, it was agreed that since the profits for 1925 had not been satisfactory, another year’s earnings would be necessary to pay for the stock. In 1927, when plaintiff again requested delivery, he was informed that, although the earnings were sufficient, it could not be done at that time because of tax complications. Tisdelle says this statement was made under a misapprehension of the facts. The amount of earnings required to make distribution possible is in dispute, plaintiff claiming that $100,000 was agreed upon as sufficient, while Tisdelle insists that a condition precedent was the accumulation of $500,000 in profits. There is conflicting testimony as to the nature of a payment of $1,500 made by check in 1926. This check, which was not produced at the trial, had upon it the words: ‘ ‘ To apply on bonus. ’ ’ Plaintiff insists that in 1928, 1929 and 1930, he continued to request delivery of the stock, resulting in a disagreement between the parties and plaintiff’s discharge after 15 years of service.
Defendant, though admitting conversation about a bonus, strongly contradicts plaintiff’s claim that there was a definite promise supported by a consideration, and insists that, if there was a contract, it was one for salary only. It further contends that the $1,500, claimed to have been paid as a part of the alleged bonus, was only given plaintiff in order to put his mind at ease before he went into a hospital for a minor operation. It is insisted that plaintiff’s right to receive any stock depended entirely upon the will and wish of defendant. The statute of frauds (3 Comp. Laws 1929, § 13417) was pleaded, as well as the fact that the alleged contract was void because not in compliance with 2 Comp. Laws 1929, § 9913, Michigan partnership association limited act. Lack of consideration and the statute of limitations (3 Comp. Laws 1929, § 13976) were also raised as a defense.
The various errors assigned may be grouped for the sake of convenience.
Pleadings.
1. Appellant contends that recovery cannot be had upon the common counts where the agreement is not one to pay money. If there was any agreement in this case, it was to pay in stock and not in cash. Cook v. Dade, 191 Mich. 561, is cited in support of this argument. In that case the plaintiff claimed a breach of contract arising out of an express agreement, between the parties, in which no money consideration was involved on either side. The wrong claimed by the plaintiff was defendant’s failure to keep his express promise to permit plaintiff, a mail carrier, to use a pair of western ponies belonging to defendant, in exchange for feeding,' caring for and breaking them in for use. We held that the common counts did not lie, but the special contract must be alleged, and distinguished the case of Nugent v. Teachout, 67 Mich. 571, where land exchanged in consideration of a promise to convey had been described as having a definite and fixed value.
In the case at bar the stock in dispute not only has a definite par value but it has a book value that can be ascertained as of the date on which plaintiff claims the transfer should have been made. The case of Cook v. Dade, supra, does not, therefore, control. See, also, In re Clark’s Estate, 234 Mich. 471.
2. Defendant denied any obligation to answer the common counts because of plaintiff’s failure to file a bill of particulars as required by Court Rule No. 20, § 1 (1931). During tbe trial, upon objection raised to testimony as to the value of services, the court denied defendant’s motion to strike the common counts and permitted plaintiff to file a bill of particulars forthwith. A subsequent motion to strike the bill of particulars as being indefinite and uncertain was denied. No error is claimed as to the time of filing, but the sufficiency of the bill of particulars is attacked. We held in Strutz v. Brown, 110 Mich. 687, that a bill of particulars containing the language: “To balance due for services as bookkeeper from October 16, 1894, to December 26, 1894, $50,” was sufficiently specific.
Proofs.
1. Defendant was questioned as to the extent of his legal education and'although the question “You learned about the statute of frauds, didn’t you, when you studied law?” was withdrawn, it could have only been intended to create an unfair inference in the minds of the jury. The question itself was prejudicial error, though the answer was not given. Witnesses are entitled to respectful consideration; and it is the duty of the court to see that they are protected from the insinuations and attacks of counsel.
2. It was not error to permit testimony by plaintiff and his witnesses as to the reasonable value of the services. Such proof was in support of plaintiff’s claim. Moore v. Capewell Horse Nail Co., 76 Mich. 606. The weight to be given such testimony is a matter to be determined by the jury.
The Charge.
Appellant and appellee both allege errors in the court’s charge to the jury. The jury was instructed that the contract in order to be valid and binding liad to be in. writing and signed by at least two managers of tbe partnership association. 2 Comp. Laws 1929, § 9913. The business of defendant was not conducted by a board of managers. Tisdelle owned all of the stock except two shares, which stood in the names of other employees. The provisions of the statute, which are designed for the protection of the individual members of the partnership association, may be and were waived by reason of the association’s course of dealing. Tisdelle had always acted alone and really was the company. See Armstrong v. Stearns, 156 Mich. 597, 608. In so holding, we do not consider the • effect of the uniform limited partnership act, Act No. 110, Pub. Acts 1931, which was passed subsequent to the date at which this cause of action arose.
It was not error to charge the jury that no recovery could be had against defendant Edward J. Tisdelle, individually. If any promises were made by Tisdelle, they were for the defendant Parker Brothers Co., Ltd. Partnerships of this sort are created for the express purpose of limiting the individual liability of the partners. Recovery cannot be allowed on a quantum meruit against a person making a promise when he himself receives no direct benefit from' the performance of the services requested. Bristol v. Sutton, 115 Mich. 365, same case, 119 Mich. 693.
The court, in its charge to the jury, said in part that the alleged contract relied upon by the plaintiff was “too vague and uncertain as to its terms to be possible of enforcement.” The jury was further instructed that neither the statute of frauds nor the statute of limitations was material, but should the jury determine that additional services had been performed by plaintiff, for which he had not been compensated, he could recover the reasonable value of such, additional services. The basis for recovery was stated by the court in the following’ language:
“You will eliminate any consideration of the alleged contract in this case, because it has not been proved, and you will limit your considerations to the issue of whether, in the absence of a contract, there was a performance of services, accepted by the defendants, or one of them, and not heretofore compensated for. * * * You may take into consideration any additional services, at any time between the time alleged, from which it is alleged an agreement was made relative to services, to the year 1927.”
Appellant contends that, where there is a dispute as to the terms of. a claimed express contract, there is no room for a recovery on quantum meruit under an implied contract theory. This is true as a general proposition. Shaw v. Armstrong, 88 Mich. 311; Swarthout v. Lucas, 101 Mich. 609. We recently held in Millar v. Macey Co., 263 Mich. 484, that:
“The law in this State seems to be well settled that where an express contract is entered into between parties, but they differ as to the terms thereof, and there is evidence tending to support the claim of each of them, it is for the jury to determine what the terms of the contract were, and there can be no recovery on the quantum meruit.”
There is, however, another rule of law that allows recovery on a quantum meruit theory where the plaintiff has performed services under an express agreement which is not enforceable because of the statute of frauds or some other statute that prevents recovery on the terms of the agreement itself. Smith v. Chase & Baker Piano Manfg. Co., 185 Mich. 313. We held in Moore v. Capewell Horse Nail Co., supra, that there was no objection to permitting proof of the contract for the purpose of showing the value placed upon plaintiff’s services by the parties. See, also, Cadman v. Markle, 76 Mich. 448 (5 L. R. A. 707). A contract, though void under the statute, may be admissible if helpful in estimating damages. Kutzner v. Stuart, 215 Mich. 270.
A consideration of these two rules leads us to the conclusion that when the terms of an express contract, unenforceable because of the statute of frauds, are in dispute, a recovery can be had under the common counts on the theory and under the condition that the jury first determine: (1) that the contract alleged by plaintiff actually was made; and (2) that the terms were such as are alleged, and (3) that the contract has been fully executed by one party and the other has received the benefits. Winchester v. Brown, 264 Mich. 421.
The most serious error in the charge was that the court allowed the jury to consider the quantum meruit claim without permitting it to determine whether a contract was made, even though recovery could not be had under its provisions. The jury should not have been instructed to “eliminate any consideration of the alleged contract in this case.” If the jury accepted this instruction, there was no proper basis on which to support a verdict under the rule hereinbefore stated.
The appellee advances on appeal the unilateral contract theory, not heretofore raised in the case either in the pleadings or in the testimony. We do not pass upon that question as it was not squarely presented to the jury or the court below. Bingham v. County of Montcalm, 251 Mich. 651.
Because of the errors stated, the judgment is reversed and a new trial granted, with costs to appellant.
Nelson Sharpe, C. J., and Potter, North, Pead, Wiest, Btjtzel, and Edward M. Sharpe, JJ., concurred. | [
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Edward M. Sharpe, J.
George P. Palmer, an unmarried man, was the owner of certain premises in the city of Detroit and on July 8, 1929, mortgaged said premises to Union Trust Company, a Michigan corporation. Upon failure to make payments as required by the mortgage, the same was foreclosed and sold at a sheriff’s sale July 17, 1931, for the sum of $18,454.74.
March 26, 1930, the Union Trust Company amended its articles of incorporation by changing its name to Union Guardian Trust Company. The notice of foreclosure was signed by “Union Guardian Trust Company (formerly Union Trust Company),” but the body of the notice did not contain a statement of the change of name from Union •Trust Company to Union Guardian Trust Company.
Defendant Isadore Kowalsky obtained possession of the premises as vendee in an unrecorded land contract from Palmer. Upon the death of George P. Palmer, his administrator on November 28, 1931, executed a quitclaim deed of the premises to Celia Kowal and Minnie Kowal, assignees of the Kowalsky contract. Said Minnie Kowal is the wife of defendant Isadore Kowalsky, and she and defendant occupied and are occupying the premises. After the expiration of the period of redemption, the defendant paid two months rent. Upon his refusal to pay further rent, plaintiff on April 14, 1933, started a summary action against him before a circuit court commissioner to obtain possession.
The defendant appeared on the return day of the summons, April 19, 1933, and the case was then adjourned to April 24, 1933. The record in the circuit court commissioner’s office shows seven adjournments “for decision” or “for findings,” and on May 18, 1933, plaintiff was given restitution of the premises. Defendant appealed to the circuit court and on August 16, 1933, the judgment was affirmed as follows:
“This cause, having been heard by stipulation of facts herétofore filed and the court having signed an opinion directing that judgment be entered for plaintiff in the sum of $579.50;
“Therefore, it is considered by the court now here that the said plaintiff do recover against the said defendant, its damages assessed in manner and form as aforesaid together with its costs and charges as aforesaid taxed in the sum of $27.50 and that plaintiff have execution therefor. ’ ’
Defendant appeals and claims that by reason of the number of adjournments the circuit court commissioner lost jurisdiction to render judgment on the 18th day of May, 1933; that the Union Guardian Trust Company acquired no title to the property, as the notice of foreclosure sale does not show that there was an assignment from Union Trust Company to Union Guardian Trust Company; and that the circuit judge had no right in a summary proceeding to enter judgment for damages.
The record discloses that the return day of the summons was April 19, 1933, at which time defendant appeared specially and the case was adjourned to April 24,1933. On that date defendant appeared and pleaded not guilty and the cause was further adjourned to April 27, 1933, for decision. Subsequently there were several adjournments to particular days “for decision” or “for findings” and finally on May 18, 1933, judgment was entered.
Section 14982, 3 Comp. Laws 1929, provides that “after an issue shall be joined, * * * the hearing may be adjourned, from time to time, as may be necessary, upon sufficient cause being shown.”
The record does not disclose the reasons for the adjournments, but we must assume, in the absence of a contrary showing, that the adjournments and continuances were regular and in compliance with the statute. The continuance of causes rests in the sound discretion of the court and in the absence of a showing of abuse of discretion is not reviewable. People v. Burby, 218 Mich. 46, and cases cited therein.
The original mortgagee was the Union Trust Company and the mortgage was foreclosed under the name of Union Guardian Trust Company. The omission of the change of name from the body of the notice of foreclosure is not a violation of 3 Comp. Laws 1929, § 14428. The mortgage never was assigned by operation of law or otherwise. The amendment to the articles of incorporation by merely changing the name of the company from Union Trust Company to Union Guardian Trust Company was not a transfer of any rights from one company to another. The notice of foreclosure complied with all of the requirements of the above statute.
Counsel for defendant complain that the. trial court had no right in a summary proceeding to enter a judgment for damages. "While it is true that the section of the statute (3 Comp. Laws 1929, § 14979) under which this proceeding is brought makes no provision for the rendering of a judgment for dam ages, yet under Court Rule No. 72 (1933) this court has power to amend the judgment of the lower court so as to give the relief intended by the lower court.
The holding of the lower court is affirmed but the case is remanded for correction of judgment to give, not a judgment for damages, but a judgment for plaintiff for restitution of the premises with a finding of the amount due for rent. Costs to plaintiff.
Nelson Sharpe, C. J., and Potter, North, Pead, "Wiest, Butzel, and Bushnell, JJ., concurred. | [
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Reid, J.
This is a suit for divorce. From a decree for plaintiff, defendant appeals.
On April 11, 1942, plaintiff filed a bill of complaint, count 1 of which prayed for an annulment on the ground that the defendant wife was insane at the time of the marriage, and count 2, for a divorce on the grounds of cruelty. Defendant filed an answer denying the material allegations, and praying for no relief except dismissal of the bill. On June 5, 1943, pursuant to stipulation and court order, plaintiff filed an amended and supplemental bill of complaint for divorce, alleging chiefly acts of gross immorality on the part of defendant occurring subsequent to the separation of the parties and the filing of the original bill of complaint, and omitting the charge of insanity and prayer for annulment. Defendant filed an answer to this latter bill on Juné 17, 1943, denying the charges made but again asking no relief other than dismissal of the bill.
Proofs were heard in the lower court from July 8 to July 13, 1943, at which time the matter was adjourned to October 12, 1943, for taking medical testimony. However, the adjourned hearing was not held until June 7, 1944, and because of defendant’s objection to the medical testimony on the ground of privilege, the testimony taken at that time was excluded and the proofs closed. On September 27', 1944, after reviewing a transcript of the proceedings, the trial judge filed his opinion, in which he dismissed count 1 for annulment and granted plaintiff á decree of divorce on the ground of cruelty, finding that defendant’s conduct with other men was such as to constitute extreme cruelty to a husband of plaintiff’s character and sensitiveness. The decree was signed October 9,' 1944, granting plaintiff a decree of divorce and making disposition of the small home of the parties.
Plaintiff and defendant were married October 29, 1940, and separated December 15, 1941, though they lived together only three months, and as husband and wife for only about three weeks. There were no children. Defendant had been previously married and divorced; this was plaintiff’s first marriage. Plaintiff is a graduate engineer doing research work on Diesel engines at General Motors Corporation, and earns a substantial salary. Prior to the marriage defendant was employed as a waitress, salesgirl and part-time hostess, and at the time of her marriage was 29 years old.
In 1939 defendant underwent three operations: hysterectomy (removal of uterus); oophorectomy (removal of ovaries); and appendectomy (removal of appendix). Defendant also testified to having had a rectal operation about seven years before the trial. A month prior to the present marriage, defendant had a complete physical and mental checkup and during a portion of the time it took to complete the examination she was confined to Grace hospital in Detroit. She advised the doctor in charge of her case of the fact that she wanted to get married. She was discharged from the hospital as being in good condition September 24, 1940, and the neurologist’s report was negative. On June 22 or 23, 1943, about two weeks before the trial, defendant was again examined by a physician and her mental condition was described as normal.
Plaintiff went with defendant quite a considerable time before he married her, calling on her at her residence nearly every night for a period- of several months. Some time after plaintiff had proposed marriage and been accepted by the defendant, defendant finally told him that she was then married, but that she had not lived with her husband for several years and that she was going to obtain a di vorce immediately, and even after being thus informed that she was already married and not divorced plaintiff continued his courtship.
After the marriage, defendant complained of various illnesses and plaintiff engaged at least 10 doctors, all of whom were specialists, for defendant. Defendant was also examined at the neuropsychiatric department of the Ann Arbor hospital by Dr. Patterson, but he made no recommendation to plaintiff following the examination. None of the doctors who examined defendant reported to plaintiff any finding of physical disability. Defendant, besides spending some time at the hospital at Ann Arbor and at Henry Ford hospital, was also confined at various times between the marriage and separation of the parties in two sanitariums arid one convalescent home, at a total cost to plaintiff for hospital and doctors’ charges of between $2,000 and $3,000.
Plaintiff testified that before his marriage to defendant, she was always very immaculate and always very much a lady, and always dressed neatly, but that she changed “within a few minutes after the marriage.” Plaintiff further testified,
“After we were married, she was never dressed properly that I can remember of. Her hair was uncombed. She would go around with old worn-out shoes when she had much better shoes to wear, and her dress was worn without belts, socks hanging loose around her ankles. When I went out to visit our friends, I argued and did everything to get her to dress so I could be proud of her appearance, but the best description of how she would dress would be she would dress slack. * * * She would send me back home to get some different shoes or a belt to her dress, or some other items she had forgotten bring with her, or was at the party, I was always at her beck and call and I would do that. ”
Plaintiff: explains the separation as follows:
“I did not separate from my wife at all except the separation, unless it was a case for her being to a hospital or unable to live with me.”
Plaintiff further testified that defendant failed to do the housework and laundry, forcing him to perform those tasks after work; that defendant feigned illness continually to force him to wait upon her; that defendant became extremely filthy in her personal habits; that she consorted with other men; that she was jealous and without any justification accused him of acts of immorality with another woman; that she circulated slanderous and untrue stories about him; that his health broke down as a result of defendant’s acts, and that there was no possibility of reconciliation. Plaintiff was corroborated in his testimony on some important points by several witnesses.
Defendant denied these charges and was supported in her denials by her brother, her mother, her sister-in-law, the husband of a first cousin, and Valetta Pudge.
Defendant admits that there is no doubt that she has been ill more than the normal person, and that she received considerable medical and hospital attention at great expense, but claims that these things do not justify plaintiff’s conduct; that instead of plaintiff adjusting himself to these conditions which he was well aware of and could have anticipated before his marriage, he pursued a course of conduct which was most cruel. Defendant claims that plaintiff was making a good salary, $400 per month, and that instead of making any serious attempts to establish a home, which he could well afford, ho schemed to have defendant confined in hospitals and institutions against her wishes, except at the University of Michigan hospital, and that at one time he lived with friends while he had defendant live in a downtown hotel. Defendant claims this attitude and course of conduct caused great expense and finally led to a separation after plaintiff acquired a home in Berkley. Defendant further claims that when plaintiff left her, he simply hired his mother-in-law to take care of defendant and left.
On cross-examination defendant testified as follows :
“Q. Was there any time in the last year or year and a half, or since you lived on Thomas street in Berkley that any man ever spent the entire night at your house when you were the only other occupant1?
“A. You mean did any man ever spend the night at my house while I was there alone1?
“Q. That’s right?
“A. No, sir.
“Q. That never happened?
“A. That has never happened as G-od is my witness.”
Plaintiff’s rebuttal witness, John Cherwalk, however, testified as follows:
‘ ‘ I have stayed there all night alone with her during the last year, at least ten times, and could have been more. I have been there and it is not true that she never saw or entertained any man at any time at night, and as to whether she made any improper advances to me when she came into my bedroom depends upon how you interpret that, perhaps you might call tíiem that. She has sat on the bed while I was in bed and while she was dressed in her nightgown.”
Upon the completion of Cherwalk’s testimony, the court directed the defendant to take the stand and examined her as follows:
“Q. Do you know him? (referring to Cherwalk)
“A. I have seen him.
“Q. Did he ever stay all night in your house?
“A. He has.
“Q. That is all.
“A. Not with me though.”
Defendant claims that upon this testimony on her part having been given, the court’s ruling indicated the disfavor in which he held the defendant and regarded her testimony. However, it is clear that the court granted defendant further time to produce testimony and upon the adjourned hearing much later than the time appointed and over a year from the time of the giving of the testimony last above quoted, the court again took up the hearing and the parties were present represented by their counsel. Mr. Pig-gins then requested approval of the court of his withdrawal from -the case. Defendant now claims that this action of Mr. Piggins was necessitated because of the attitude of the court and resulted in her being put to a disadvantage. We find that the rulings by the court with eminent fairness amply took care of the defendant’s rights and gave her a full opportunity to present her case.
Defendant complains that the trial judge rejected her testimony as unworthy of belief. In that, the trial judge was justified.
We. find the facts to be substantially as claimed by plaintiff. The .trial court correctly found the defendant guilty of the cruelty charged in the bill of complaint.
The correctness and justice of the decree as to division of property is not a point in issue. Defendant simply requests that the decree be reversed and the bill dismissed. The decree for plaintiff is affirmed, with costs to plaintiff.
Starr,, C. J.,' and North, Butzel, Bitshnell, Sharpe, and Bowles, JJ., concurred.
The late Justice Wiest took no part in the decision of this case. | [
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