222 Mich. 331 | Mich. | 1923
This- bill in equity attacks the validity of an election held on November 8, 1921, under the provisions of section 3309 et seq., 1 Comp. Laws 1915, the apparent result of which election was to annex the territory comprising the village of Oakwood to the city of Detroit. All the municipalities affected by the proceedings are made defendants together with the board of county canvassers of Wayne county. The trial judge was of the opinion that the election could not be attacked in equity, that the remedy was proceedings in the nature of quo warranto, and without considering the merits dismissed the bill. Plaintiffs’ counsel here insist that proceedings in the nature of ■quo warranto do not furnish the exclusive remedy, that a bill in equity is maintainable, and that in any «event the bill should not have been dismissed but the case should have been transferred to the law side
Since the decision of this case in the court below this court has handed down opinions in Youells v. Morrish, 218 Mich. 194, and Anderson v. Levin, 218 Mich. 225. In the Youells Case we considered the effect to be given sections 13551, 13552 and 13553, 3 Comp. Laws 1915. In that case the proceedings were instituted seasonably but the municipality was not made a party, and we held that it could not be brought in by amendment after the statutory period had expired. In the Anderson Case the proceeding’s were not instituted within the time limited by the statute. In the instant case the bill was filed nine days after the election and all the municipalities affected were made parties. In the Youells Case a motion for rehearing was made in which substantially the same argument was indulged in upon the question of the exclusiveness of the remedy as is here urged by plaintiffs. The application for rehearing was denied. In both cases, as in the instant case, the contest did not involve the claims of rival candidates to an office. Both cases held that the statutory remedy was exclusive, and we are all agreed that such should be the.holding here.
My associates are all agreed that this case should be transferred to the law side of the court under the provisions of section 12351, 3 Comp. Laws 1915. With some difficulty I have been persuaded to agree with their views. The statute is a remedial one and has frequently been applied by this court. Flint v. LeHeup, 199 Mich. 41; Toles v. Duplex Power Car Co., 202 Mich. 224; Courtney v. Youngs, 202 Mich. 384; City of Iron Mountain v. Waterworks, 206 Mich. 537; VonHoene v. Barber, 215 Mich. 538; French v. Mulholland, 218 Mich. 248; Banks v. Wayne Circuit Judge, 221 Mich. 147.
