Williams v. County of Bay

367 Mich. 406 (1962) 117 N.W.2d 28

WILLIAMS
v.
COUNTY OF BAY.

Docket No. 58, Calendar No. 49,442.

Supreme Court of Michigan.

Decided September 7, 1962. Rehearing denied November 5, 1962.

Dilley & Dilley (Albert R. Dilley, of counsel), and Carlton L. Thompson, for plaintiff's.

B.J. Telly (Norman J. Miller, of counsel), and Martin B. Legatz, for defendants.

DETHMERS, J.

Petitions, addressed to the board of supervisors of Bay county, were filed in the county clerk's office proposing annexation to the city of Essenville of 4 areas in Hampton township. The beard found the petitions to be defective and rejected them.

Mandamus was commenced in the circuit court to compel the board of supervisors to submit the annexation questions, with respect to 3 of the areas, to the electors of the district to be affected as defined by statute. The board's finding of defective petitions as to the fourth area has not been contested.

From judgment for plaintiffs ordering issuance of a writ of mandamus to require the board of supervisors to call an election on annexation of the 3 areas this appeal is taken.

Essexville is a city of 4,558 population according to the 1960 United States census. The petitions bore the requisite number of signatures of electors who were freeholders from the city and from the township in general. With respect to 1 of the 3 areas, however, no signatures were procured, and in another only 2, from electors of the area to be annexed. Defendants say that lack of signatures by such electors renders the petitions defective. This they reason from the provision in section 9 of the home-rule act (CLS 1956, § 117.9 [Stat Ann 1961 Cum Supp § 5.2083]):

"Provided, however, That territory may be attached or detached to or from cities having a population of 15,000 or less if a majority of the electors voting on the question in the city to or from which territory is to be attached or detached, and a majority of the electors from that portion of the territory to be attached or detached, as the case may be, both vote in favor of such proposition."

It will be noted that this provision distinguishes annexations of township areas to cities of populations of less than 15,000 from those to larger cities in which the electors of the remainder of the township are also entitled to vote on the question. Defendants reason that if township electors outside the area to be annexed are not permitted by statute to vote on the annexation question then it must follow that they are not qualified to sign petitions therefor. Support for their position is said to be found in City of Dearborn v. Village of Allen Park, 348 Mich 449. There petitions were filed for incorporation as a city of a village and adjacent uninhabited township territory. This Court quoted from the above noted section of the statute, the following:

"Provided, however, That when a territory is proposed to be incorporated as a city only the residents of the territory to be incorporated shall vote on the question of incorporation."

On the strength of that provision this Court held that only electors in the area to be incorporated were entitled to sign the petitions and to vote on the question. Section 6 of the statute (CLS 1956, § 117.6, as amended by PA 1957, No 210 [Stat Ann 1961 Cum Supp § 5.2085]), provides, however, with respect to incorporation of home-rule cities, or the annexation of territory thereto or detachment therefrom, or consolidation, et cetera, that proceedings for such purposes may be originated "by petition therefor signed by qualified electors who are free-holders residing within the cities, villages or townships to be affected thereby, to a number not less than 1% of the population of the territory affected thereby". Section 9 defines "district to be affected" as follows:

"The district to be affected by every such proposed incorporation, consolidation or change of boundaries shall be deemed to include the whole of each city, village or township from which territory is to be taken or to which territory is to be annexed."

In the Dearborn Case, supra, this Court seems to have contradicted that definition by stating, with respect to proceedings for incorporation as a city, that the area affected consists "of the area proposed to be incorporated only." By analogy the case seems helpful to defendants' contention on this point. Not to be overlooked, however, is the statement in this Court's opinion in that case (p 454), which considerably dilutes the analogy, that:

"In Presque Isle Prosecuting Attorney v. Rogers Township, 313 Mich 1, it was held that when petitions are filed for the incorporation of territory which includes a village and additional unincorporated area, it is a new incorporation and not a consolidation or annexation, hence the statutes applicable to consolidation or annexation do not necessarily govern for the incorporation of a city."

Accordingly, by its own terms, the language of the Dearborn Case is not necessarily controlling here. The language of section 6 of the act, to the effect that the proceedings such as this for annexation to a city may be originated by petition signed by electors of the cities or townships to be affected thereby and the definition in section 9 of "the district to be affected" as including the whole of each township from which territory is to be taken, are clearly contrary to defendants' position. It seems to us that the doubtful analogy of Court decision here must yield to the unequivocal language of the governing statute. The 3 petitions were not defective for the reason so far considered.

The defendants' contention that the court erred in fixing the election date on which it directed the board of supervisors to submit the annexation question, as to 3 of the areas, to the electors appears to be sound. North Main Land Co. v. Willson, 245 Mich 537; CLS 1956, § 117.8 (Stat Ann 1961 Cum Supp § 5.2087). A stay having been granted by this Court and the date fixed by the trial court for such election having passed without the election, the matter of fixing the date for the election will properly revert to the board of supervisors for determination.

Defendants are correct in their position that the court erred in directing that the annexation question as to all 3 areas be submitted to the electors of the respective districts affected thereby. As already noted, that would include the electors of the entire township, whereas the statute, as quoted above, relating to annexation by a city of less than 15,000 population, restricts voting in the township to electors in the township areas to be annexed by the city. Warren Products, Inc., v. City of Northville, 356 Mich 481. The exception is in the case of an area to be annexed which has no qualified electors residing therein, in which situation, under 1 of the provisions of section 9 of the act, the question is submitted to the qualified electors of the district to be affected, namely, the city and the township, who vote collectively thereon, a majority voting collectively in favor thereof accomplishing the annexation.

Four petitions, each for the annexation of 1 of the 4 areas, respectively, were circulated together, 1 set in the city and another in the township, and all 4 of each set were signed by the same electors in the same sequence. When filed with the clerk the 4 petitions of each set and the 2 sets were fastened together. Because the petitions for annexation of 1 of the 4 areas were admittedly defective in that they propose to annex a portion of another city in which no signatures were procured, it has become a matter of dispute as to whether the 2 sets constitute 1 petition which, if thus defective in 1 part, is defective in toto, or whether, though all of the parts were bound together, they still remained, in fact, 4 separate petitions, the defect of 1 leaving the other 3 intact. The board of supervisors held the former and the trial court the latter to be the case. We agree with the trial court. The fact that all the petitions were fastened together for filing, that each set of 4 had on top of 1 petition a printed slip reading "Sign all 4 copies" and that there are 4 in each set that were signed by the same electors in the same sequence, does not obviate the fact that each of the 4 described separate property and contained a different map and was separately signed by the several electors and was easily distinguishable and separable from the others in the set. We approve the trial court's finding that there were 4 petitions and that 3 were valid, entitled to affirmative action by the supervisors.

Defendants say, as to an area proposed to be annexed where no qualified electors reside that the "alternate method" provided in section 9 of the statute is the only one which may be employed. This provides for petitions signed by holders of record title of more than 1/2 of the area to be annexed, to be filed with the annexing city's council and the township board, and that such annexation may then be accomplished by the affirmative majority vote of such council and board. Section 6 of the act also provides that, when less than 10 qualified electors reside in the area to be annexed, signatures of holders of record title of over 1/2 the area will suffice in lieu of the minimum of 10 signatures from the township otherwise required. Petitions so signed are addressed to the board of supervisors as distinguished from the alternate method provided in section 9. These alternate methods are permissive, but not required. See Goethal v. Kent County Supervisors, 361 Mich 104. Lack of 10 qualified electors in any of the 3 areas to be annexed did not make use of the alternate method compulsory. The petitions were not defective on this score.

Examination of the record does not persuade us, nor did it persuade the trial judge, that the maps attached to the petitions were defective or failed to accurately portray the lands to be annexed as described in the petitions.

Section 6 of the act requires that "Such petition shall be verified by the oath of 1 or more petitioners." The circulators, who were also petitioners, did verify the petitions. It appears from the testimony of one, taken at the trial, that be did not have the personal knowledge of matters in connection with circulating the petitions to which he had certified. Nevertheless, as the trial court found, the requisite number of signatures appear on the petitions, the latter are regular and in due form on their face, and no question has been raised as to the sufficiency of numbers of signers nor as to the qualifications of the signers as being freeholder electors of the city or township as therein represented. There was nothing before the board of supervisors in this connection to warrant its rejection of the petitions.

The proofs in the case do not support defendants' claim that the circulators of the petitions were guilty of such misrepresentation to the signers as to invalidate the petition.

The judgment below is modified in accord herewith, and so affirmed, with remand to the trial court with directions to refer the matter to the board of supervisors for submission of the question of annexation of the 3 areas in the township to the qualified electors of the city of Essexville and of the township areas proposed to be annexed having qualified electors residing therein, or if none reside in the area to be annexed, then to the qualified electors of the city of Essexville and of the township of Hampton who shall vote collectively thereon, at a time and manner as determined by the board of supervisors and provided by law.

No costs, a public question being involved.

CARR, C.J., and KELLY, BLACK, KAVANAGH, SOURIS, OTIS M. SMITH, and ADAMS, JJ., concurred.