In Re Petition of Miller , 18 Mich. App. 480 ( 1969 )

18 Mich. App. 480 (1969) 171 N.W.2d 473

In re PETITION OF MILLER

Docket No. 5,509.

Michigan Court of Appeals.

Decided July 30, 1969.

Powell, Peres, Carr & Jacques, for plaintiff.

L.W. McEntree, for defendant Oakland County Road Commission.

Joseph F. Kosik, for defendants Garry Crake, Larry Crake, and Joseph Puertas.

Before: J.H. GILLIS, P.J., and LEVIN and BRONSON, JJ.

LEVIN, J.

The petitioner, Florence Miller, appeals from an accelerated judgment denying her petition filed pursuant to §§ 59-66 of the plat act of 1929^[1] for the vacation of a street and alleys in Double Super Highways Subdivision No 1, Waterford Township, Oakland County, Michigan. The trial judge ruled that the street and alleys are county roads under the jurisdiction and control of the board of county road commissioners of Oakland county and that the circuit court, therefore, lacks power to vacate them. We agree with his determination and affirm.

If the street and alleys sought to be vacated are in fact county roads, the circuit court could not vacate them because under the provisions of § 66 of the plat act^[2] and § 18, ch 4 of the general highway law^[3] county roads may be vacated only upon the vote of the board of county road commissioners. See In re Petition of Bryant (1949), 323 Mich. 424, 434, 435, and In re Petition of Wernicke (1951), 331 Mich. 91, 95.

The issue before us is thus narrowed to the question whether the street and alleys sought to be vacated are county roads. The street and alleys were purportedly taken over as county roads by resolution of the Oakland county board of road commissioners. The petitioner asserts that the takeover resolution was adopted out of time and was ineffective.

Section 2 of the McNitt Act^[4] required the board of county road commissioners of each county to take over as county roads the total township highway mileage in the county. Twenty per cent of the township mileage was to be taken over on or before April 1, 1932, and a like percentage on or before April 1 of each succeeding year. "In the year next following," the board was to take over all dedicated streets and alleys in recorded plats and outside of incorporated cities and villages.

Thus, under the McNitt Act the street and alleys which petitioner seeks to vacate should have been taken over by the county road board not later than April 1, 1937, or, possibly, December 31, 1937. The resolution relied upon by the board was not, however, adopted until February 25, 1938.^[5] The petitioner claims that the resolution was ineffective because it was adopted after the expiration of the time within which the county road board was required to act.

The underlying legislative objective of the McNitt Act was to have boards of county road commissioners take over all township roads and dedicated streets and alleys in recorded plats and outside incorporated cities and villages. The boards were given 6 years within which to accomplish this objective.

In this case, although the board's takeover resolution was adopted out of time, it was adopted soon after the expiration of the prescribed time. The act does not state that a takeover after the expiration of the 6-year period is prohibited. It is entirely silent whether a late takeover is effective and, indeed, it is also silent whether implementing resolutions were required at all to accomplish the takeover provided for and in terms at least required by the act.

As we see it, the function of the 6-year time table was to allow for an orderly takeover, one within the absorptive capacity of the county road boards, rather than to impose an absolute time limit for their assumption of control of township roads and dedicated streets and alleys. Accordingly, the legislative purpose would be best served by a construction of the act which does not establish the termination of the prescribed period as an absolute time limit and which recognizes as fully effective a belated implementing resolution such as the one adopted in the present case.^[6]

Affirmed. No costs, a public question.

All concurred.

NOTES

[1] PA 1929, No 172 as amended (MCLA §§ 560.59-560.66 [Stat Ann 1953 Rev §§ 26.489-26.496]).

[2] MCLA § 560.66 (Stat Ann 1953 Rev § 26.496).

[3] PA 1909, No 283 (MCLA § 224.18 [Stat Ann 1958 Rev § 9.118]).

[4] PA 1931, No 130 (CL 1948, § 247.2 [Stat Ann § 9.142]).

[5] The resolution provided that the dedicated streets and alleys in the subdivisions therein named (among which was the subdivision involved in the present case) were "as per [the McNitt Act] Act #130, Public Acts 1931" taken over as county roads and made a part of the Oakland county road system.

[6] Cf. Fay v. Wood (1887), 65 Mich. 390, 401, and W.R. Reynolds & Co. v. Secretary of State (1927), 238 Mich. 552, 554, holding that the failure of a legislative body (the common council in the former case and the board of supervisors in the latter case) to act within the time prescribed by statute did not prevent action thereafter. Similarly see Hooker v. Bond (1898), 118 Mich. 255, 257 (court of chancery), and Harvey v. City Commission of the City of Port Huron (1923), 225 Mich. 368, 371 (charter commission, dicta).

We also note that section 19 of PA 1951, No 51 (MCLA § 247.669 [Stat Ann 1958 Rev § 9.1097(19)]) provides in part:

"The board of county road commissioners in each of the several counties shall, within 1 year from the effective date of this act, complete the taking over as county roads of all roads, streets and alleys heretofore required to be taken over as county roads by the provisions of Act No. 130 of the Public Acts of 1931, as amended, being sections 247.1 to 247.13, inclusive, of the Compiled Laws of 1948."

Section 21 of PA 1951, No 51 (MCLA § 247.671 [Stat Ann 1958 Rev § 9.1097(21)]) repealed the McNitt Act.