Heinze v. St. Joseph Township School District No. 1 , 336 Mich. 552 ( 1953 )

336 Mich. 552 (1953) 58 N.W.2d 920

HEINZE
v.
ST. JOSEPH TOWNSHIP SCHOOL DISTRICT NO. 1.

Docket No. 25, Calendar No. 45,787.

Supreme Court of Michigan.

Decided June 8, 1953.

Arthur G. Preston, Jr., for all plaintiffs.

John T. Ryan, for plaintiffs Heinze and Colby.

John L. Crow, for defendant.

BOYLES, J.

The St. Joseph city school district and 2 resident taxpayers filed this bill of complaint to enjoin the defendant St. Joseph township school district from exercising any authority over a certain area in the township which plaintiffs claim had been legally annexed to the city school district. The circuit judge denied the relief sought, dismissed the bill of complaint, and the plaintiffs appeal.

On April 28, 1952, at an election held in the township and city areas affected by the proposed annexation, a majority of the electors voted for the annexation. On May 2, 1952, the legislature enacted and gave immediate effect to an amendment^[*] to PA 1927, No 319, pt 2, ch 3, § 17 (general school code), adding an additional condition to annexation by requiring a separate affirmative vote in the territory to be annexed, approving such annexation. This amendment is the cause of the present litigation.

On May 7, 1952, copies of the proceedings were filed in the offices of the county clerk and the secretary of State, and on May 12th the annexation of the additional territory was completed by resolution of the board of education, in conformity with the statute. Probably this was done, on May 7th and May 12th, without knowledge of the amendment given immediate effect on May 2d requiring the additional affirmative vote of approval. In any event, if the amendment effective May 2d is upheld in the present litigation, the acts taken May 7th and May 12th did not legally complete the annexation. It imposed an added requirement to the process of completing the annexation, as follows:

"And provided, That there is an affirmative vote in an annexation election in the school district or districts in the territory to be annexed approving such consolidation. The board or boards of education having authority in such school district or districts shall call such annexation elections within 30 days after the territory in question has been annexed."

The board of education of the township school district, in compliance with said requirement, within 30 days called said election, it was held, and the electors voted about 2 to 1 against the consolidation. Thereupon the board of education of said township school district continued to exercise authority over its school district, which action the present suit by the city school district seeks to enjoin.

Two questions, only, are here urged by the plaintiff appellants. The first is that the immediate effect given by the legislature to said PA 1952, No 229 (May 2d), is contrary to the Michigan Constitution (1908), art 5, § 21, and therefore a nullity. The pertinent part of said section provides:

"No act shall take effect or be in force until the expiration of 90 days from the end of the session at which the same is passed, except that the legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety by a two-thirds vote of the members elected to each house."

Counsel for appellants argue that said PA 1952, No 229, was not immediately necessary for the preservation of the public peace, health or safety. They quote from and rely entirely on dissenting opinions in some of the decisions of this Court. See Newberry v. Starr, 247 Mich. 404, beginning on page 412, and Todd v. Hull, 288 Mich. 521, beginning on page 542. They do not cite any decision upholding their contention that the immediate effect provision in the amendment of said section 17, by PA 1952, No 229, is invalid on the ground that it contravenes art 5, § 21, Michigan Constitution (1908). We find nothing in the present case to make an exception to the rules announced in many decisions of the Court upholding the immediate effect provision as valid.^[**] Seemingly in point, in Newberry v. Starr, supra, the Court held that giving immediate effect to an act providing that school districts under certain circumstances would constitute a single school district does not violate said article 5, § 21, and said:

"The legislature may have considered, in the interest of public health at least, it was immediately necessary, to secure coordination and cooperation of the agencies of certain cities and school districts described in the act, that each should embrace the same territory. The act relates to important State agencies having to do with preservation of public health, peace, and safety."

Appellants' second claim is that the 1952 amendment violates the due process clauses of the United States and State Constitutions.^[***] In their brief they argue that the amendment deprives the plaintiffs of property without due process of law.

The stumbling block in appellants' progress toward that end lies in the fact that the amendment does not deprive the plaintiffs of any property rights. The plaintiff city school district has no property rights in the territory of the township school district unless it has been annexed to the city school district in conformity with the statutory requirements. That would seem to be elementary. Nor do the individual plaintiffs have any property rights in the property of the school district. Attorney General, ex rel. Kies, v. Lowrey, 131 Mich. 639, s.c. 199 U.S. 233 (26 S. Ct. 27, 50 L ed 167); Presque Isle Prosecuting Attorney v. Township of Rogers, 313 Mich. 1.

Counsel for appellants now raise the question that the 1952 amendment is indefinite and uncertain in that it does not state who is to be allowed to vote in the required election, that it does not define the time and manner in which the election is to be held, what notice shall be given, et cetera. No specific instance is shown where a property right was involved, or that there was a lack of due process involved in the submission of the question of approving the annexation under the 1952 amendment, or any other provisions of the school code.

Affirmed. Costs to appellee.

DETHMERS, C.J., and ADAMS, BUTZEL, CARR, SHARPE, and REID, JJ., concurred with BOYLES, J.

BUSHNELL, J. (dissenting).

Reversal should be granted for the reasons stated in Newberry v. Starr, 247 Mich. 404, beginning at page 412, and Todd v. Hull, 288 Mich. 521, beginning at page 542.

The instant case is an example of the difficulties which can result from the misapplication of the "immediate effect" concept of legislation.

NOTES

[*] PA 1952, No 229, amending CL 1948, § 353.17 (Stat Ann 1951 Cum Supp § 15.423).

[**] See Attorney General, ex rel. Barbour, v. Lindsay, 178 Mich. 524, 527; People v. Urcavitch, 210 Mich. 431, 435; People v. Stambosva, 210 Mich. 436, 441; People v. Bodjack, 210 Mich. 443, 454; Newberry v. Starr, 247 Mich. 404, 407; Industrial Bank of Wyandotte v. Reichert, 251 Mich. 396, 399; Naudzius v. Lahr, 253 Mich. 216, 227 (74 A.L.R. 1189, 30 NCCA 179); Detroit Trust Co. v. Stormfeltz-Loveley Co. 257 Mich. 655, 661 (88 A.L.R. 1263); In re Slush's Estate, 279 Mich. 19, 22; Todd v. Hull, 288 Mich. 521, 526; United Insurance Co. v. Attorney General, 300 Mich. 200, 204.

[***] US Const, am 14, § 1; Mich Const (1908), art 2, § 16.