*1
Freight
Quimby.
Lines
v.
Trans.
Black,
by
.3.
Opinion
foregoing views. Plaintiff should
with
be consistent
appellate courts. Costs in cir-
of both
have costs
result.
final
the
should abide
cuit
part
{dissenting).
in
case,
This
while
distinguishable
factually
from
American
Gamble
Company (1968),
CITY OF SAGINAW v. BUDD. the Court. Municipal Corporations 1. Constitutional Law — —Ordinances. declaring structurally Section of held, requiring and in- a nuisance unconstitutional improper police power valid as an tbe municipality legislative and as an precise to an administrative official without stand- guide actions, ards to ordinance nor where neither general building up (Saginaw code set 203[a]). [1] [2] [3] Am38 Am37 Am37 Am37 Jur, Municipal Corporations Jur, Municipal Corporations Jur, Municipal Corporations Jur, Municipal Corporations References por Points 651. §§ § § in Headnotes 156. 176. Mich Buildings. Municipal Corporations of Nuisances — —Abatement right proceed abate city lias A purports using ordinance which unconstitutional constituting building a nuisance conditions as certain to define *2 D-511, 203[a]). (Saginaw Ordinance Opinion. Dissenting JJ. Adams, Brennan, and Municipal Corporations Building Or- Constitutional Law — — Delegation Legislative Nuisance — of dinance —Abatement Power. public
Municipal ordinance, which to be nuisances all declared safety presented a to health or “hazard or dilapida- welfare, by reason of required by altera- their abatement abandonment" and tion or demolition, was not an uneonstitutional tion official, legislative since to administrative prescribed a condition action to be talcen when standard for present public health is inimical and welfare specific have an presented in nonabstract terms that are and ordinary provides meaning, and ordinance understandable for hearing aon basis a and record which can be reviewed a purely subjective judgment (Saginaw Ordinance other than [a]). SOS Appeals, Appeal 3, Hol- Division from Court McGregor, affirming J., JJ., P. Burns brook, Saginaw, (Fred J.), Borchard J. Submitted Jan- (Calendar uary 51,560.) Docket No. No. 9,1968. 10, September 25, Decided App 681, reversed. municipal
Complaint by Saginaw, cor- poration, against Harry Budd to Budd and Blanche dwelling garage have declared directing nuisance and for order defendants Judgment plaintiff for af- demolish structures. Appeals. appeal. Defendants firmed Court of Reversed. Saginaw Budd. ok (Francis Harvey B. & Gooh Brooher,
Smith, plaintiff. counsel), for Drinan, Joseph McDonald, defendants. B. inspector the chief 1962, 2, On October Kelly, Saginaw inspections division to demolish certified mail, defendants,
ordered the house they garage on Andre street, owned before November on or city manager February sent notice to 1963, the permits within obtain defendants days. February comply, failed to Defendants complaint circuit plaintiff filed alleging: court, enacted an has “That *3 safety, protect welfare and health, the ordinance to people of of the of the
morals regulating provides minimum standards ordinance and quality controlling design, of construction, the occupancy, mainte- location and materials, use and buildings of structures the nance all and March and effective on is known became building building code, code or the uniform as D-511, and referred to as hereinafter Ordinance amended,” require-
and that defendants had failed meet the of ments the ordinance. challenged an un-
Defendants the ordinance as police improper constitutional power. opinion
The trial in its found “that said plaintiff not an ordinance which to enforce is seeks police power”, unwarranted exercise judgment and in its stated; Opinion op the Court. provisions to the D-511, “Pursuant chapter article amended, 1, 101, said buildings are a nuisance reason of inade- quate dilapidation and abandonment; in order to abate said adjudged,
“It ordered and That defendants, assigns, buildings their heirs, executors or cause the at North Andre be street to demolished within days from the hereof; date adjudged, “It further ordered and if That buildings do not defendants cause the be demol- may limit, ished within the above time carry meaning out said abatement within chapter Saginaw general 3 of the code.” again challenged fact that defendants validity Appeals of the ordinance in the Court following is evidenced from the Appeals* affirming judgment the Court of finding (pp 684) of the circuit court : appeal, claiming “The defendants that section 203(a) is of Ordinance D-511 of the improper unconstitutional as exercise of the power police delegation municipality, legislative authority to an adminis- trative officialwithout definable standards. Second, appellants city’s contend that the action con- taking private property stitutes the just compensation. use without question, “The ordinance in Ordinance No 203(a), provides that: “ ‘All or structures which are struc- turally or which dangerous provided adequate egress, not a fire hazard, constitute or are otherwise *4 life, to human or which in relation to existing safety use constitute hazard to or health, public inadequate or reason welfare, mainte- dilapidation, nance, obsolescence,or abandonment as
[*] Saginaw Budd v. (1906), App v. Budd. the Couet. specified any in code or in this other effective ordi- purpose are for the nance, this section, buildings. All such unsafe hereby public repair, declared to be nuisances and shall be abated alteration, rehabilitation, demolition or procedure in accordance with removal, of this chapter or of article 1 of section 3 of the general code.’ Saginaw general “The code referred to above, chapter provides: art 101.1 “ annoys, injures endangers ‘Whatever or safety, repose public; comfort or of the offends public decency; interferes with, obstructs or renders dangerous any highway, navigable street, lake or any way in stream; or renders the insecure property hereby in life or nuisance.’ declared to be a ‘by “The ordinance before us used the terms, dilapidation.’ reason scarcely specific, terms These could be made more photographic examination of the exhibits description adjectives that no terms, shows could be better or used to describe the condition of the build- question. ings appellants’ Thus the contention improper leg- there has been an that authority to an islative administrative official with- out is without merit.” appeal In their to this Court, defendants call to the fact that in attention Commissioner State (1955), Police v. Anderson 344 Mich 90, 95 we said: say dilapidated that “To the houses are old justify razing alone their not does make them nuisance,” question following:
and submit as their No judge “Did the trial lower court err ruling appellee, city Saginaw, seeks to enforce not an unwarranted police power?” *5 Mich 178 op Opinion the Court. Plaintiff-appellee admits that the ordinance (ordinance D-511) question could be administered but states that manner, in an unconstitutional “this precisely why gone has to performing than in this matter rather provisions ordi- under the nance.” defendants-appellants’ question No 1
We answer in the discloses affirmative. ordinance authority improper delegation of an with- there was greater delegation of standards, out definable a delega- than without passed judgment upon and have have tions we opinions. previous unconstitutional in See declared (1956), City Osius v. St. Clair Shores (58 1079); Hoyt Inc., v. Brothers, ALR2d Rapids (1932), 447; O’Brien Grand Highway (1965), Mich 545. Commissioner State past, future, have in the as we will We right proceed city’s to recognized in court a to nothing should in this abate taking interpreted prevent further be proper against defendants. action approve judgment based however, cannot, We granting and, therefore, an invalid ordinance request appellants’ for relief: 203(a) of ordinance D-511 of the section “That Michigan declared unconstitu- be police power tional exercise municipality, improper delegation legislative authority official an administrative precise guide actions, standards to taken set that the action under said be aside.” defendants-appellants.
Reversed. Costs v. Bunn. ok the Coukt. J., C. T. M. Kavanagh, Black, Dethmers, JJ., concurred with Kelly, J. (dissenting). I am unable to Kelly. with Mr. Justice I find no constitutional *6 infirmity Saginaw city ordinance.1 Rather Appeals I minology “by with the Court of the ter
reason of dilapidation specific abandonment”, and has ordinary an meaning. understandable upon I do not by read the cases relied Justice Kelly he does. Osius v. St. Clair Shores2 upon proposition turned that service stations permitted particular only were in a zoned area when zoning appeals. authorized board How- provided ever, the ordinance no standard which appeal apply making board judgment. could its The quite situation here seems to me to be different. bring To Osius to bear in this case the ordinance legal say “only dilap- would have to, effect, such appeal idated or abandoned an board approves permitted.” point in Osius was gasoline that not all service stations were excluded —only permitted by appellate those board em- powered any to act but without stand- ascertainable ard of action. Hoyt
So, too, was the Brothers, situation in Inc., Rapids 3 Grand There it was manager grant who was authorized to or withhold permission soliciting charity to solicit funds if the “worthy” a were appli one. I do not find the case cable here. Highway In O’Brien v. State it Commissioner,4 say “yes”
was the executive officerwho could
to one
2 (1956),
4 (1965),
applicant maintain to erect or any basis “no” to another or device regard judgment. I upon to formulate inapposite. case as in non- here defines consider we The ordinance to the inimical terms a condition abstract hearing provides for a It
'health and welfare. other basis which can be reviewed a record judgment. subjective purely than Appeals its rea- I would affirm the Court authority cited. and on basis stated, sons JJ., concurred T. E. Brennan, Adams *7 PROJECT. In re MARTINY LAKES v. MECOSTA BOARD OF SUPERVISORS COUNTY DEPARTMENT. CONSERVATION MOORMAN SAME. Opinion op the Court. Levels —Artifi- and Water 1. Waters Courses —Statutes—Lake Public Lake. cial Inland applies an artificial inland level of 1961 The inland lake aet 1961, seq.). et (CLS 281.61 publie lake § [6] [14,15,19, [16-18, [5] [1-4, [7] [13] [24] 56 Am Waters §§ 50 Am 8-12, 22, 5 Am Jur Am Am Jur 21J Jur, Jur, Jur, 23] References Am Waters 2d, Appeal 56 Am 2d, Waters §§ Statutes §§ Appeal and Error Jur, Am Jur, Jur, and Error 3, 187, Waters §§ for Points Waters 193. 179 et 188. § 318. §§ seq. in Headnotes 61, 402 et seq.