City of Birmingham v. Oakland County , 49 Mich. App. 299 ( 1973 )

49 Mich. App. 299 (1973) 212 N.W.2d 51

CITY OF BIRMINGHAM
v.
OAKLAND COUNTY
GENESEE COUNTY
v.
CITY OF FLINT

Docket Nos. 14036, 14250.

Michigan Court of Appeals.

Decided August 30, 1973.

Hartman, Beier, Howlett, McConnell & Googasian (by Eric J. McCann), for plaintiff City of Birmingham.

Robert P. Allen, Oakland County Civil Counsel, and Hayward Whitlock, Armand P. Deatrick, and Jack C. Hays, Assistants Civil Counsel, for defendant Oakland County.

David, Kregg & Conway, for plaintiff Genesee County.

Patrick H. Hynes (Simen, Figura & Zimmer, P.C., of counsel), for defendant City of Flint.

Before: HOLBROOK, P.J., and DANHOF and ADAMS,^[*] JJ.

PER CURIAM.

Case No. 14036

Plaintiff, City of Birmingham, instituted suit against the County of Oakland and the 48th Judicial District Court, as codefendants, seeking a declaratory judgment requiring defendant County of Oakland to reimburse plaintiff for witness fees paid in connection with criminal preliminary examinations conducted by the 48th Judicial District Court concerning state law criminal matters.

Plaintiff was granted a judgment by Oakland County Circuit Judge William John Beer. His opinion declared that "it is the responsibility of the defendant, County of Oakland, to pay witness fees incurred by the Oakland County Prosecutor's office in the course of state law preliminary examinations held in the City of Birmingham".

Case No. 14250

In the latter part of 1970 and the early part of 1971, the City of Flint, the district control unit for the 68th District Court, through its director of finance, advised the controller for the County of Genesee of its intention to forward witnesses who had been called to testify in preliminary examinations or trials of state law violations in the 68th District Court, to the office of the Genesee County Treasurer for payment of witness fees. The county refused payment. This action was commenced to obtain a judicial determination of the rights of the parties. Genesee County Circuit Judge Thomas C. Yeotis entered a judgment declaring "the County of Genesee has the legal obligation to pay witness fees and mileage allowances attendant to preliminary examinations and trials of criminal cases in the 68th District Court when the violation of state law giving rise to the action takes place in the City of Flint".

Both cases having been appealed, this Court, on its own motion, ordered them consolidated for hearing and argument.

Issue

Is the county liable for witness fees and mileage allowances incurred in preliminary examinations and in state law violation trials in district courts of the third class?

The Revised Judicature Act, § 8323; MCLA 600.8323; MSA 27A.8323, states:

"Witnesses in the district court shall be entitled to receive the same fees and mileage allowances to which witnesses in circuit court are entitled. Where the county is responsible for such expenses in the circuit court, the district control unit for the place where the trial occurs shall be responsible for such expenses in the district court."

Sections 13 and 14, ch 14, Code of Criminal Procedure, MCLA 775.13 and 775.14; MSA 28.1250 and 28.1251, read:

"Sec. 13. Whenever any person shall attend any court as a witness in behalf of the people of this state upon request of the public prosecutor, or upon a subpoena, or by virtue of any recognizance for that purpose, he shall be entitled to the following fees: For attending in a court of record, $12.00 for each day and $6.00 for each half day; for attending in a justice court or upon an examination, $10.00 for each day and $5.00 for each half day; and for traveling, at the rate of 10 cents per mile in going to and returning from the place of attendance, to be estimated from the residence of such witness if within the state; if without the state, from the boundary line which witness passed in going to attend the court.

* * *

"Sec. 14. In courts of record such witness shall prove his attendance and travel in open court before the clerk, and in justice courts before the justice, on the day of trial, or upon an examination, and a certificate thereof from the justice, countersigned by the prosecuting attorney of the county, shall authorize the county clerk to draw an order upon the county treasurer for the payment of the fees of such witnesses attending such justice court as aforesaid, which order shall be paid by the said county treasurer in like manner as witness fees in courts of record are paid, and an order therefor from the clerk of such court of record shall authorize the county treasurer to pay the fees of witnesses attending such court of record as aforesaid in the same manner as the fees of jurors attending such courts are paid."

On April 10, 1916, Attorney General Grant Fellows in a letter opinion (OAG, 1916, pp 489, 490) stated:

"Chapter 77 of the Judicature Act apparently relates to civil procedure entirely and not to criminal procedure, while section 12015 of the Compiled Laws of 1897 relates solely to criminal procedure. It is my understanding that the Judicature Act taken as a whole relates to civil procedure, etc., as is evidenced by its title and only affects criminal procedure incidentally.

"I am, therefore, of the opinion that section 12015 of the Compiled Laws of 1897 is not superseded by section 4 of Chapter 77 of the Judicature Act."

The modern counterpart of section 12015 is MCLA 775.13; MSA 28.1250.

In People v Stanley, 344 Mich. 530; 75 NW2d 39 (1956), the Supreme Court had the question whether an appeal in a criminal case was governed by the Judicature Act and was therefore of right, or by the Code of Criminal Procedure and was therefore by leave. In holding that the Code of Criminal Procedure controlled, the Court said (p 540; 75 NW2d at 44):

"The title of the judicature act negatives a conclusion that it was intended by the legislature to apply to procedure in criminal cases. The later enactment of the code of criminal procedure, without making reference to the judicature act, shows the legislative intent. These 2 acts were obviously intended by the legislature to apply to the practice and procedure in civil cases separate from that in criminal cases. A mere reading and comparison of the titles of the judicature act and of the code of criminal procedure can lead to only one conclusion — one was intended by the legislature to refer to practice and procedure in civil cases, and the other to criminal procedure."

On March 9, 1950, Attorney General Stephen J. Roth, in an opinion addressed to John D. Voelker, Prosecuting Attorney of Marquette County (OAG, 1949-1950, No 1179, pp 489-490), stated as follows:

"You have inquired whether the payment of witness fees in criminal cases is to be governed by PA 1915, No 314, chap 48, § 3 (CL 1948, § 6483 [Stat Ann § 27.2557]), as amended by PA 1949, No 96 (Stat Ann 1949 Cum Supp § 27.2557), or by PA 1927, No 175, chap 15, § 13 (CL 1948, § 775.13 [Stat Ann § 28.1250]).

"The first mentioned section is a part of that chapter of the judicature act which treats of the fees of sheriffs and witnesses while the latter section is a part of the chapter of the code of criminal procedure which deals with fees to be paid in criminal cases.

"The cited 1949 amendment to the judicature act increased witness fees throughout the state, except in the county of Wayne, and made them uniform. It also added to the section in question, so far as pertinent, the words italicized below:

"``Witnesses shall receive for attending in any suit or proceeding pending in a court of record, $5.00 for each day and $2.50 for each half day: Provided, That no complaining witness in any criminal suit or proceeding shall be entitled to witness fees. Witnesses, including complaining witnesses, shall receive for traveling at the rate of 10 cents per mile in coming to the place of attendance, to be estimated from the residence of such witness if within this state, or from the boundary line of this state, which such witness passed in coming, if his residence be out of the state.' (italics supplied)

"The relevant section of the code of criminal procedure provides for different witness fees and travel expenses for attending courts of record as well as for attending justice courts.

"Prior to the mentioned 1949 legislation there appeared no inconsistency between these two sections, although they differed as to fees and mileage payments, because one related to civil and the other to criminal cases.

"The title to the judicature act, which was not amended in 1949, presently reads:

"``An Act to revise and consolidate the statutes relating to the organization and jurisdiction of the courts of this state; the powers and duties of such courts, and of the judges and other officers thereof; the forms of civil actions; the time within which civil actions and proceedings may be brought in said courts; pleading, evidence, practice and procedure in civil actions and proceedings in said courts; to provide remedies and penalties for the violation of certain provisions of this act; and to repeal all acts and parts of acts inconsistent with, or contravening any of the provisions of this act.' (italics supplied)

"It will be seen that this title declares the object of the judicature act to be the regulation of practice and procedure in civil matters. The title to the code of criminal procedure, on the other hand, indicates that the object of that act is to regulate criminal procedure, including ``fees of * * * witnesses * * * in criminal cases.'

"The italicized new matter added to the questioned section of the judicature act by PA 1949, No 96, insofar as it purports to govern procedure in criminal cases has no relation whatsoever to civil practice and procedure. Therefore, it cannot be said to be germane, auxiliary or incidental to the general object and purpose of the judicature act as expressed in its title.

"Const 1908, art 5, § 21, provides that ``no law shall embrace more than one object, which shall be expressed in its title.' In construing this provision the supreme court has declared that although the title to an act need embrace the object or purpose of the act only in general terms, Loomis v Rogers, 197 Mich. 265, 271 [163 N.W. 1018, 1020 (1917)], and need not constitute a table of contents or an index to the act, People [ex rel Wayne Prosecuting Attorney] v Sill, 310 Mich. 570, 574 [17 NW2d 756, 758 (1945)], yet it must be sufficiently comprehensive to challenge legislative and public attention to all matters embodied in the act which can be said to be germane, auxiliary or incidental to the title thereof. Rohan v Detroit Racing Association, 314 Mich. 326, 356 [22 NW2d 433, 444 (1946)] (166 A.L.R. 1246, 1260). No one would suppose, after reading the title to the judicature act, that this act contained any provision regarding criminal procedure. It is apparent, therefore, that the references to criminal procedure contained in PA 1949, No 96, are not comprehended within the title to the judicature act.

"An argument might be made that the italicized wording of the amendatory act as quoted herein comes within that portion of the title thereof which relates ``to the organization and jurisdiction of the courts of this state.' In my opinion, such argument is not tenable for the reason that the statutory provision providing for the bringing of a witness before a court and payment to him of a witness fee therefor is not organizational or jurisdictional but is procedural. The judicature act, so far as procedural matters are concerned, has to do solely with the civil as distinguished from the criminal phase thereof.

"Accordingly, in my opinion, PA 1949, No 96, insofar as it relates to criminal cases is violative of Const 1908, art 5, § 21, and void.

"You are therefore advised that the payment of witness fees in criminal cases is governed by the applicable provisions of the code of criminal procedure."

The present Revised Judicature Act was adopted in 1961. However, its title remains substantially the same as that of the Judicature Act of 1915 and the reasoning that it applies only to the organization and jurisdiction of the courts and to civil procedure, but not criminal procedure, remains applicable. Since witness fees in criminal cases are matters of procedure and not organizational or jurisdictional, to the extent that MCLA 600.8323; MSA 27A.8323 relates to criminal cases, it is void because of violation of that part of Const 1963, art 4, § 24, which reads: "No law shall embrace more than one object, which shall be expressed in its title".

The title of the Code of Criminal Procedure specifically states that it is to provide for fees of officers, witnesses, and others in criminal cases. Consequently, we hold that the provisions of §§ 13 and 14 of the Code of Criminal Procedure are controlling and dispositive of the question herein presented.

Affirmed as to both cases.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.