151 Mich. 294 | Mich. | 1908
Lead Opinion
Relators claim to be a bureau of public safety for the city of Bay City. Their title to their office is derived from an appointment made by the governor of the State acting pursuant to Act No. 750 of the Local Acts of 1907. They brought this mandamus proceeding in the circuit court for the county of Bay to compel said respondents to surrender to them the custody of the public records, papers and offices pertaining to the police and fire departments of said city. The case was heard in the lower court on petition and answer, and a mandamus ordered in accordance with the prayer of relators. The proceedings are brought to this court for review by writ of certiorari.
The only question in the case arises from the contention of respondents that the act under which relators are appointed is unconstitutional. That act provides for the appointment by the governor of a bureau of public safety consisting of five members whose term of office shall be respectively one, two, three, four and five years. It confides to the bureau so appointed “full power and control and the management of the police department, and the fire department, the organization and government and discipline of such department and the custody and control of all public property, books, records and equipments thereto belonging to such department.” If this act had been confined to the police department it would have been constitutional under the decision of People v. Mahaney, 13 Mich. 481. But it is not so confined. It
Has the legislature the constitutional right to vest the management of the fire department of a municipality in a board appointed by the governor? This court has consistently held, commencing at a very early day (see People v. Hurlbut, 24 Mich. 44) that municipalities have a constitutional right of self-government, and that it is an invasion of that right for the State to make appointment of officers to perform functions of a local governmental character. It was determined in People v. Hurlbut, supra, that officers having charge of the streets of a municipality, officers having charge of the water supply of a municipality, and officers having charge of the sewers of a municipality, each perform functions of a local governmental character; that the Constitution gives to the municipality, and denies to the State, authority to appoint such officers. I quote from the opinion of Justice Cooley in that case:
“ In the case before us, the officers in question involve the custody, care, management and control of the pavements, sewers, water works and public buildings of the city, and the duties are purely local. The State at large may have an indirect interest in an intelligent, honest, upright and prompt discharge of them; but this is on commercial and neighborhood grounds rather than political, and is not much greater or more direct than if the State line excluded the city. * * * These [municipal] corporations are of a two-fold character; the one public as regards the State at large, in so far as they are its agents in government; the other private, in so far as they are to provide the local necessities and conveniences for their own citizens. * * * The question recurs whether our State Constitution can be so construed as to confer upon the legislature the power to appoint for the municipalities, the' officers who are to manage the property, interests, and rights in which their own people alone are concerned. If it can be, it involves these consequences: As there is no provision requiring the legislative interference
This court has never cast doubt upon these principles, but has often recognized and applied them. It applied them in People, ex rel. Board of Park Com’rs, v. Detroit Common Council, 28 Mich. 228, and there denied
The right of the State to appoint officers to manage the fire department of a city cannot, in my judgment, be maintained by a single sound argument which would not also authorize it to appoint officers having the management of municipal streets or of municipal water works. It is said that a municipality derives no private corporate benefits from, and as such has no particular interest in, a municipal fire department. This points to no essential distinction between a municipal fire department and the departments managing municipal streets and municipal water works. It is only_ by considering a municipal corporation as an entity, distinct and separate from its inhabitants and their interests, that it can be said that it has no “particular interest in its fire department.” So considered, it may just as truly be said that it has no particular interest in the department managing its streets or water works, and it may also be said that it is no part— at least, no essential part — of the plan of managing municipal streets or of municipal water works that private corporate benefits should be derived therefrom. All these departments are, however, alike in this — and this is the important circumstance — each is an agency of local government maintained for the benefit of the local community. I can conceive of no legitimate process of rea
It is true that oiir decisions have recognized the right of the State.to make provisional appointments of officers who perform duties of a local governmental character, but it is conceded, as I understand the briefs of counsel, at least, it is clear that the appointments under consideration cannot be sustained as provisional appointments. We cannot then sustain the constitutionality of the act under consideration without overruling the foregoing decisions of this court. The suggestion that we should overrule them and thereby deny — or cast doubt upon— the proposition that our Constitution recognizes the right of local self-government cannot for one moment be entertained.
This court has decided in Davock v. Moore, 105 Mich. 120 (38 L. R. A. 783), that the State has a right to appoint a municipal board of health, and it is argued that there is no distinction between the function of such a board and that of a board controlling a municipal fire department. The decision of Davock v. Moore proceeds upon the ground that a municipal board of health is a State agency and not a municipal agency. It clearly recognizes the authority of People v. Hurlbut, supra, and it proceeds upon the ground that those municipal officers, and those only who are acting as agents of the State, can be appointed by the State. To claim that a municipal fire department — whose duty it is to extinguish fires within the limits of a municipality — is as much an agent of the State as is a municipal board of health, is to cast doubt upon the validity of the decision of Davock v. Moore, supra. For, in my judgment, as already shown, a municipal fire department is indistinguishable from a system of municipal water waters which is authoritatively
Relators insist that Brink v. City of Grand Rapids, 144 Mich. 472, is an authority supporting their contention that the State has a right to appoint the officers having charge of a municipal fire department. In that case it was determined that a municipality was not responsible for the negligence of the employés of a fire department. This decision does not rest upon the proposition that a municipal fire department is a State agency. It rests upon this proposition — a proposition conceded by relators’ counsel — that “a municipality is not responsible for negligent injuries to persons or property committed by members of a fire department when engaged in work pertaining exclusively to the extinguishment of fires.” Does it follow that the State has authority to appoint the officers who manage the fire department of a municipality ? Un
“ Indeed, it is a matter of general observation that the State does not force upon the local community these larger powers [powers to provide for its citizens such matters of necessity or convenience as their health, protection, comfort or enjoyment asa political community may demand], but waits to be solicited to confer them when the people interested shall deem them for their advantage. This is so well understood-that in many of the States it has been decided that a municipal corporation may justly be held, when receiving its charter, to contract in consideration of the powers conferred, that its authority shall perform towards all parties concerned, the several duties imposed upon the corporation, and may be held liable in damages for their failure to perform them. And although we have not followed those decisions in this State, the two-fold character of these corporations, as organizations on the one hand for State purposes, and on the other for the benefit of the individual corporators, has invariably
Justice Cooley thus cleárly recognizes that in Michigan the doctrine that a municipality is responsible for the negligence of its officers when engaged in performing a local governmental duty does not obtain.
It is undoubtedly true that relators’ contention is sustained by decisions of the 'courts of some of our sister States. It is sufficient to say that those decisions are opposed to our own and to our peculiar doctrine of constitutional local self-government.
In my judgment, the statute under consideration is unconstitutional and the order granting a mandamus should be vacated.
Dissenting Opinion
(dissenting). Act No. 750, Local Acts 1907, was an act entitled—
“An act to create a bureau of public safety for the city of Bay City, to define the powers and duties of the bureau of public safety, and repeal all acts and parts of acts inconsistent herewith.”
The act provided for the immediate appointment by the governor of five persons as members of said bureau, whose respective terms of office should terminate on the first day of May, i. e., one on the first day of May next ensuing, and one on each successive first day of May for the succeeding four years.
Section 2 confided to said persons full power and control over the police and fire departments of said city, the organization, government and discipline thereof, and the custody and control of all public property, books, records and equipment pertaining thereto.
Section 6 provided that all acts and parts of acts incon
On or about July 2, 1907, the governor appointed and commissioned the relators members of such bureau, and on July 8, 1907, they met at the city hall and assumed to organize as such bureau, and thereafter demanded from the respondents, viz., the mayor, comptroller, recorder, treasurer and common council of said city, the custody, control and management of said property, etc., of said police and fire departments, which demand was refused, whereupon they applied to the circuit court of Bay county for a writ of mandamus to compel such action by respondents. An order to show cause was issued and respondents filed their answer and after a hearing the writ was granted and respondents have brought the cause to this court hy writ of certiorari. Several errors were assigned, which will sufficiently appear in the questions discussed. All relate to the constitutionality of Act No. 750, Local Acts 1907.
Counsel contend that the provision authorizing the appointment of members by the governor is unconstitutional for the, reason that it deprives Bay City of the right of self-government. While the right contended for by respondents has been sustained in several cases, its application has been denied in others, and in all the crucial question has been held to be whether the functions of the officers provided for were those of a governmental agency. If they were, the right of local selection was held not to apply, and this crucial test has been recognized in all cases since that of People v. Hurlbut, 24 Mich. 44, the leading case upon the subject, where it is elaborately discussed.
To determine tliis case, it is therefore only necessary to ascertain whether the functions of the members of this board are governmental or merely relate to the private interests of the city. So far as the police department is concerned, the claim is not tenable, the question being
This was followed by People v. Reilly, 53 Mich. 260, where the appointment by the governor of jury commissioners in the county of Wayne, who selected jurors for the municipal courts, was held valid.
The same was held as to the board of health of Detroit. Davock v. Moore, 105 Mich. 120 (28 L. R. A. 783), and as to tax commissioners in Board of State Tax Com’rs v. Board of Assessors of Grand Rapids, 124 Mich. 491. See, also, People v. State Board of Tax Com’rs, 174 N. Y. 417 (63 L. R. A. 884).
In the case of Brink v. City of Grand Rapids, 144 Mich. 472, an action for negligence in flushing a hydrant by members of the fire department, we held that the defendant was not liable, for the reason that the fire department was a governmental agency. This holding was in conformity to the general rule upon the subject.
In 2 Dillon on Municipal Corporations (4th Ed.), § 976, the rule is stated as follows:
“Sec. 976. (774). City not liable for Wrongful Acts of Firemen. — So, although a municipal corporation has charter power to extinguish fires, to establish a fire department, to appoint and remove its officers, and to make regulations in respect to their government and the management of fires, it is not liable for the negligence of firemen appointed and paid by it, who, when engaged in their line of duty upon an alarm of fire, ran over the plaintiff in drawing a hose-reel belonging to the city, on their way to the fire; nor for injuries to the plaintiff caused by the bursting of the hose of one of the engines
See, also, the recent case of Terrell v. Water Co. (Ky.), 105 S. W. 100; 36 Century Digest, pp. 2173, 2174 and 2189.
This question is to be considered in the light of the opinion of Mr. Justice Cooley, in People, ex rel. Board of Park Com’rs, v. Detroit Common Council, 28 Mich. 228, review of which will be found in 1 Dillon on Municipal Corporations (4th Ed.), § 72, note 1. We quote as follows:
“ The ground upon which the judgment in. the Detroit Park Case, just mentioned, rests, as appears by the opinion of the court delivered by Cooley, J., is that a munic
That case turns upon the ability of the court to say that city parks appertain to it in a private (as distinguished from the public) advantage.
Not so the fire department. In our previous quotation from Dillon, we find that the service is performed by the corporation in obedience to an act of the legislature, a duty which it has a right to impose, one in which the corporation as such has no particular interest, from which it derives no (private) corporate benefit that the officers of that department, however selected, though they be called officers of the city, are charged with a public service, and are a State agency as contradistinguished from a local municipal agency pure and , simple. We adopted this view in Brink v. City of Grand Rapids, supra, and we cite that case, not because it held that city not liable for the neglect of the fire officers merely, but for the reason given for its immunity. On principle, the protection of the general public from the loss of life and property through fires in congested centers must be of concern to the entire public of the State, quite as clearly so as the functions of boards of health. It must be within the power of the legislature to provide for the prevention of fires, explosions, etc., in every city, village, and township in the State, through agents of its own, appointed by the governor, or elected by the locality to which their duties are confined, and it
We think this statute within the principle of our own case, and that it is sustained by the weight of authority elsewhere. The order should be affirmed, with costs against respondents.