Docket No. 104269 | Mich. Ct. App. | Dec 6, 1988
On February 6, 1987, plaintiff filed a complaint for injunctive and declaratory relief, on behalf of the Michigan Department of Natural Resources, in Sanilac Circuit Court. The complaint alleged that a drainage project then in progress in the Elk Creek Drainage District was in violation of, among other things, the Inland Lakes and Streams Act. On February 11, 1987, the circuit court denied the relief sought by plaintiff. On March 4, 1987, defendants filed a counter-complaint seeking a declaratory judgment that the Elk Creek Drain was exempt from the Inland Lakes and Streams Act. On October 14, 1987, a judgment issued which held that the Elk Creek Drain was exempt. Plaintiff appeals as of right. We affirm the circuit court.
In the trial court, the parties stipulated to the following statement of facts:
1. The Elk Creek Drain is a county drain which was lawfully established in 1948, pursuant to the Michigan Drain Code of 1923.
2. The Elk Creek Drain does not now, nor has it ever been, constituted as a mainstream portion of a natural water course identified by the Natural Resources Commission, pursuant to rules promulgated under section 11 of the Inland Lakes and Streams Act.
3. All proceedings required under the provisions of the Michigan Drain Code were properly conducted, and all documents required under the Michigan Drain Code were properly drafted, obtained and filed.
4. On or about May 27, 1981, and September 28, 1981, the Sanilac County Drain Commissioner, Mr.*529 Stuart Armstead, received petitions, for the clean-out/maintenance of the Elk Creek Drain.
5. On or about May 31, 1984, a Board of Determination was convened, to consider whether the petitioned clean-out/maintenance of the Elk Creek Drain was necessary and conducive to public health, convenience or welfare. Following a public hearing, the Board of Determination determined that the petitioned clean-out/maintenance was necessary, and an Order of Necessity to that effect was entered and filed in the office of the Sanilac County Drain Commissioner.
6. On or about April 16, 1986, a Notice of Letting of Construction Contract for the petitioned clean-out/maintenance project in the Elk Creek Drain was issued.
7. On or about August 28, 1986, Mr. Les Thomas of the Michigan Department of Natural Resources telephoned Mr. Stuart Armstead for purposes of inquiring as to whether or not Mr. Armstead intended to file an application for a permit pursuant to the Inland Lakes and Streams Act, 1972 PA 346, same being MCL 281.951, et seq.; MSA 11.475(1), et seq. Mr. Armstead indicated that a permit was not required, pursuant to the exemption provisions of the Act.
8. That on September 15, 1986, the construction contracts were executed for the clean-out/maintenance work called for in the referenced petitions.
9. That, on or about September 20, 1986, the construction was commenced in the Elk Creek Drain clean-out/maintenance project.
10. Neither the Sanilac County Drain Commissioner nor the Elk Creek Drainage District applied for or obtained a permit under the Inland Lakes and Streams Act, relying upon the exemption set forth in Section 4(g) of said Act.
Additionally, the parties stipulated to a statement of the issue as follows:
Must a permit be obtained under the provisions*530 of the Inland Lakes and Streams Act for maintenance and improvement of a county drain, legally established or constructed prior to the effective date of the Michigan Drain Code of 1956, when that county drain does not constitute a mainstream portion of any natural watercourse identified in rules promulgated by the Natural Resources Commission pursuant to Section 11 of the Inland Lakes and Streams Act?
On September 4, 1987, the circuit court issued an opinion that no permit was required under the Inland Lakes and Streams Act for the maintenance and improvement of the county drain established prior to the Drain Code of 1956. As noted, a judgment consistent with the circuit court’s opinion was issued on October 14, 1987. We agree with the circuit court.
The Inland Lakes and Streams Act is a regulatory scheme limiting construction and other activities which may adversely affect Michigan lakes and waterways. This is accomplished by requiring that a permit be issued by the Department of Natural Resources before any construction as outlined in the act is initiated. MCL 281.953; MSA 11.475(3). An exemption from the permit requirement is provided in § 4(g) of the act, MCL 281.954(g); MSA 11.475(4)(g):
A permit shall not be required for:
(g) Maintenance and improvement of all drains legally established or constructed prior to January 1, 1973, pursuant to Act No. 40 of the Public Acts of 1956, as amended, being sections 280.1 to 280.630 of the Michigan Compiled Laws, except those legally established drains constituting mainstream portions of certain natural watercourses identified in rules promulgated by the commission pursuant to section 11.
In the present case, we first find the statute clear and unambiguous that a permit is not required for the maintenance and improvement of "all drains legally established or constructed prior to January 1, 1973.” Plaintiff, however, argues that the "pursuant to” language limits the exemption to those drains legally established or constructed following the enactment of the Drain Code of 1956. We disagree.
The Drain Code of 1956, MCL 280.1 et seq.; MSA 11.1001 et seq., represents the Legislature’s attempt to codify all laws regarding drains and to provide procedures to be followed in proceedings to construct and maintain drains. Toth v Waterford Twp, 87 Mich. App. 173" court="Mich. Ct. App." date_filed="1978-11-27" href="https://app.midpage.ai/document/toth-v-waterford-township-1860706?utm_source=webapp" opinion_id="1860706">87 Mich App 173, 176; 274 NW2d 7 (1978). It is well settled that the Legislature possesses the right and power to refer to provisions of another statute and render them applicable and binding as though incorporated and reenacted in the act under consideration. Alan v Wayne Co, 388 Mich. 210" court="Mich." date_filed="1972-08-30" href="https://app.midpage.ai/document/alan-v-wayne-county-1618409?utm_source=webapp" opinion_id="1618409">388 Mich 210, 274; 200 NW2d 628 (1972), citing Clay v Penoyer Creek Improvement Co, 34 Mich. 204" court="Mich." date_filed="1876-06-06" href="https://app.midpage.ai/document/clay-v-pennoyer-creek-improvement-co-7928302?utm_source=webapp" opinion_id="7928302">34 Mich 204, 208 (1876). In such a case, the sections referred to must be treated as though they had been reenacted at length in the act under consideration and without
In the present case, § 4(g) of the Inland Lakes and Streams Act makes reference, not to a single section of the Drain Code, but to the entire act, "being sections 280.1 to 280.630 of the Michigan Compiled Laws.” We therefore turn to the Drain Code of 1956 to determine its applicability to a construction of § 4(g) of the Inland Lakes and Streams Act. The Elk Creek Drain was, as stipulated to by the parties, lawfully established in 1948 pursuant to the Michigan Drain Code of 1923. The Drain Code of 1956, in MCL 280.621; MSA 11.1621, repealed the 1923 act. However, through a proviso contained in MCL 280.623; MSA 11.1623, a "saving clause” provides:
This act shall not impair or affect any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time this act takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if this act had not been passed.
The language of a saving clause in a repealing act is to be construed in light of the legislative intent to save the prior enactment and, while such legislative intent will not prevail over a subsequent clear and distinct enactment, it may go far to explain ambiguous or doubtful language. Blackwood v Van Vleit, 30 Mich. 118" court="Mich." date_filed="1874-07-24" href="https://app.midpage.ai/document/blackwood-v-van-vleit-7927815?utm_source=webapp" opinion_id="7927815">30 Mich 118, 119-120 (1874). In Blackwood, the Supreme Court construed a saving clause as evidencing a legislative intent to preserve to certain deed holders provisions which rendered prior deeds prima facie evidence of title. Similarly, in the present case, the saving clause contained in the Drain Code of 1956 evidences a legislative intent to preserve to defendants all
We affirm the judgment of the trial court that no permit was required under the Inland Lakes and Streams Act for the maintenance or improvement of the Elk Creek Drain.
Affirmed.