Smith v. City Commission , 281 Mich. 235 ( 1937 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Plaintiffs, owners of land in the westerly part of the city of Grand Rapids, claiming they were entitled to refund of a special assessment levied against their property to defray the cost and expense of the construction of State trunkline highway M-50 which passed by or through their premises, petitioned the city commission of Grand Rapids therefor. The city commission refused to allow such refund to plaintiffs, who appealed from the action of the city commission to the superior court of Grand Rapids, which court refused plaintiffs relief. "No appeal shall be allowed from the decision of said court." I Comp. Laws 1929, § 3594, subd. 5 (d), as last amended by Act No. 8, Pub. Acts 1934 (1st Ex. Sess.). Plaintiffs bring certiorari from the order of the superior court of Grand Rapids to this court.

Act No. 17, Pub. Acts, 1925 (1 Comp. Laws 1929, § 4425), provides:

"On and after the first day of January, A.D. nineteen hundred twenty-six, the cost of constructing, improving and maintaining trunkline highways shall be met entirely by the State."

"The important change effected by the 1925 act was that the entire cost of constructing, improving, and maintaining trunkline highways was placed upon the State, thereby relieving the counties and townships of the portion of such cost imposed upon them by the 1919 act." Johnson v. Ontonagon Board ofCounty Road Commissioners, 253 Mich. 465, 467.

Plaintiffs base their claim upon 1 Comp. Laws 1929, § 3594, subd. 5 (d), as last amended by Act No. 8, Pub. Acts 1934 (1st Ex. Sess.), and 1 Comp. Laws 1929, § 4651, subd. 5 (d), as last amended by Act No. 7, Pub. Acts 1934 (1st Ex. Sess.). The language of these sections is identical, section 3594 relating to the distribution of funds derived from the gasoline tax, so-called, and section 4651 relating to the distribution of the moneys derived from the weight tax, so-called.

The determination of the question involved depends upon the construction of the statutes above quoted. There is no question that plaintiffs' property abuts State trunkline highway M-50, in the city of Grand Rapids, that such property was assessed for the construction of such highway. The only question is whether plaintiffs are entitled to a refund under these provisions of the statutes. The question involved has not been directly passed upon by this court, though in City of GrandRapids v. Iosco Land Co., 273 Mich. 613 (105 A.L.R. 695), it is said:

"The obvious purpose of Act No. 107, Pub. Acts 1933, was to make it possible to secure relief to taxpayers through the use of weight and gasoline tax collections for the payment or refund of special assessments levied for the construction of highways."

It is true in that case the court said "The statute established the right to the refund in the grantor." But the question in controversy there was between a grantor and grantee as to the right to a refund which had been made by the city.

The gist of appellants' contention is that the statute is to be construed as mandatory upon the city commission instead of directory, — and the essence of defendant's contention is that the statute is to be construed as vesting discretionary power in the city commission.

The proper construction of a statute is for the court.Albert v. Gibson, 141 Mich. 698. The object of statutory construction is to discover the legislative intent. People v.Marxhausen, 204 Mich. 559 (3 A.L.R. 1505); Miles, ex rel.Kamferbeek, v. Fortney, 223 Mich. 552; Gwitt v.Foss, 230 Mich. 8; People v. Gould, 237 Mich. 156. In construing a statute, it is the duty of the court to construe it as it is, Ellis v. Boer, 150 Mich. 452, and to attempt to carry out the intention of the legislature, Attorney General,ex rel. Owen, v. Joyce, 233 Mich. 619. Primarily, the legislative intention is to be ascertained from the language of the act itself. Bidwell v. Whitaker, 1 Mich. 469;Ellis v. Boer, supra. When the language of a statute is plain and unambiguous, there is no room for construction, City ofDetroit v. Township of Redford, 253 Mich. 453; but the statute must be given effect according to its plain meaning. Barstow v.Smith, Walk. Ch. (Mich.) 394; People v. Lowell, 250 Mich. 349;MacQueen v. Port Huron City Commission, 194 Mich. 328; Crary v.Marquette Circuit Judge, 197 Mich. 452. Where, however, the language of a statute is of doubtful meaning, the court should give it a reasonable construction looking to the purpose to be subserved thereby, Attorney General v. Bank of Michigan, Harr. Ch. (Mich.) 315; Bennett v.Michigan Pulpwood Co., 181 Mich. 33, and the object sought to be accomplished, In re Estate of Ticknor, 13 Mich. 44, and its occasion and necessity, Bennett v. Michigan PulpwoodCo., supra; Sibley v. Smith, 2 Mich. 486. Such construction should be placed upon the statute as to effect its purpose.People v. Stickle, 156 Mich. 557. The spirit and intention of the statute should prevail over its strict letter. StambaughTownship v. Iron County Treasurer, 153 Mich. 104. Ordinarily, if a statute is open to construction at all, it will be so construed if possible as to prevent injustice, AttorneyGeneral, ex rel. Common Council of the City of Detroit, v.Marx, 203 Mich. 331, and obviate absurd consequences, AttorneyGeneral v. Railway, 210 Mich. 227. The whole act is to be construed together, Attorney General v. Bank of Michigan,supra; People v. Railway, 228 Mich. 596; and every part of it should be given effect if possible, City of Grand Rapids v.Crocker, 219 Mich. 178; People v. Burns, 5 Mich. 114;Attorney General, ex rel. McKay, v. Detroit Erin Plank RoadCo., 2 Mich. 138. Resort may be had to other statutes relating to the same subject. Miles, ex rel. Kamferbeek, v. Fortney,supra; In re Kreiner, 156 Mich. 296. It is, of course, the duty of the court to ascertain the purpose of the legislature, C. N.Ray Corp. v. Secretary of State, 241 Mich. 457; Miles, ex rel.Kamferbeek, v. Fortney, supra, and statutes in pari materia should be construed together, Board of Control of the MichiganState Prison v. Auditor General, 197 Mich. 377.

"Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and the same is true where no substantial rights depend on the statute, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results. But a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and prerequisite conditions must exist prior to the exercise of power, or must be performed before certain other powers can be exercised, then the statute must be regarded as mandatory." 59 C. J. pp. 1074, 1075.

"Other statements of the rules for determining the legislative intent are that statutes which affect the public interest or claims de jure of third persons, or promote the ends of justice, or confer a new right, privilege, or immunity, and prescribe the mode for the acquisition, preservation, enforcement, or enjoyment thereof, are mandatory." 59 C. J. p. 1075.

Statutes which coufer upon a public body or officer power to act for the sake of justice, or which clothe a public body or officer with power to perform acts which concern the public interests or the rights of individuals, are generally regarded as mandatory, although the language is permissive merely, since they are construed as imposing duties rather than conferring privileges." 59 C. J. pp. 1076, 1077.

"A mandatory construction will usually be given to the word ``may' where public interests are concerned, and the public or third persons have a claim de jure that the power conferred should be exercised, or whenever something is directed to be done for the sake of justice or the public good; but never for the purpose of creating a right." 59 C. J. pp. 1082-1085.

These principles have frequently been recognized by this court. Freud v. Wayne Circuit Judge, 131 Mich. 606; Rich v.Board of State Canvassers, 100 Mich. 453; McBrian v. City ofGrand Rapids, 56 Mich. 95. In McBrian v. City ofGrand Rapids, supra, the statute provided the board of public works, in constructing sewers, should advertise for sealed proposals to execute the work according to the plans and specifications adopted by the board and "may" contract with the lowest responsible bidder. This court said:

"In construing this section, with reference to contracting with the lowest responsible bidder, the word 4 may I must be construed as if it meant shall. What the board is required to do is for the benefit of the public; the object being to invite competition, and prevent favoritism and fraud in awarding contracts for public works. It was not the intention of the legislature to leave it discretionary with the board whether the contract should be made with the lowest responsible bidder."

In State, ex rel. McDill, v. Board of State Canvassers,36 Wis. 498, the statute stated that the election board "may" dispatch a messenger to the inspectors who made the returns, commanding them to complete the returns in the manner specified by law. This court quoted with approval from that case inRich v. Board, of State Canvassers, supra, and said:

" ``It is not necessary that a person should be a lawyer in order to know that the word "may," as first used in the statute above quoted, means "must." Any one would so read it who has sufficient intelligence to comprehend that the preservation of our system of free government is impossible unless the will of the people, lawfully expressed through the ballot-box, is respected and obeyed.'

"We think it is altogether clear that there was a plain neglect of duty in failing to send a, messenger for corrected returns."

"When a statute confers a power upon a corporation, to be exercised for the public good, the exercise of such power is commonly held to be not merely discretionary, but mandatory."Motorcoach Operators Ass'n v. Detroit Street RailwayCommissioners, 267 Mich. 568.

Applying the principles above stated to the construction of the statutes in question, of which the disputed portion is above quoted, we find the statute provides:

"Such sums so paid to such incorporated cities and villages shall be used by them, respectively, for the following purposes and in the following order of priority."

As applied to the city of Grand Rapids, such money should be applied as follows: (1) The payment of its share of trunkline and Federal aid road maintenance costs; (2) the payment of its obligations on highway projects undertaken by it jointly with the State highway commissioner, under the provisions of, by contract or agreements authorized by, or approved by Act No. 131, Pub. Acts 1931 (amending 1 Comp. Laws 1929, § 4418); (3) the payment of bonds, interest on bonds or other obligations (including any sinking fund requirements thereon), issued or incurred by the city or village for the widening, opening or improvement of any street or highway or for bridge or grade separations within such city; (4) the payment or refunding to the taxpayers, without interest, of all or any portion of the special assessment or assessments for the cost of opening, widening or improving any State trunkline highway within any incorporated city or village, which cost was levied as a special assessment or assessments prior to the amendatory act. When such payment or refund shall be determined by the legislative body of the city, the same shall apply in equal pro rata benefits to all lands so assessed for such special assessment or assessments; and (5) the improvement, repair or maintenance of streets and highways or the construction and maintenance of bridges or grade separations, or general street or highway purposes.

The statute should not be construed so as to enable the city to divert any part of the funds from the purpose for which they are appropriated, nor to vary the order of priority fixed by the statute. The city may not refuse the payment or refunding to the taxpayers, without interest, of any portion of the special. assessment or assessments for the cost of opening, widening or improving any State trunkline highway within the city levied prior to the enactment of Act No. 107, Pub. Acts 1933, nor may it refuse to apply the same in equal pro rata benefits to all lands so assessed for special assessment or assessments; nor may it lawfully refuse, in the exercise of its discretion, to pay the sums appropriated by the legislature to be disbursed under section 3594, subd. 5 (d), as amended, and use the moneys for the improvement, repair or maintenance of streets and highways or the construction and maintenance of bridges or grade separations, or general street or highway purposes. No part of the funds appropriated may be used for the improvement, repair or maintenance of streets and highways or the construction and maintenance of bridges or grade separations, or general street or highway purposes, as specified in section 3594, subd. 5 (e), as amended, until all the payments or refunding to the taxpayers in equal pro rata benefits to all lands assessed for special benefits as specified in section 3594, Subd. 5 (d), as amended, shall be paid in full.

The city commission, in carrying out and administering the statute and applying the appropriation made by it, must apply the money appropriated and received according to the statute. It may, in its discretion, determine the amount to be paid under section 3594, subd. 5 (d), as amended, if there is not sufficient money which has come to it to pay in full the amounts appropriated. Plaintiffs are entitled to be reimbursed to the full amount of the special assessment made against their lands when, as, and if money comes into the hands of the city under either of the acts in question not required to be paid out by it under section 3594, subd. 5 (a, b, c), as amended, and the city commission has no authority to refuse so to apply the money and set aside and vary the order and priority of payment as fixed by statute.

Judgment of the trial court is reversed and the case remanded for further proceedings in accordance herewith. No costs, a public question being involved.

FEAD, C.J., and NORTH, WIEST, BUTZEL, BUSHNELL, SHARPE, and CHANDLER, JJ., concurred.