183 N.W.2d 386 | Mich. Ct. App. | 1970
HORRIGAN
v.
KLOCK
Michigan Court of Appeals.
Benton, Hicks, Beltz & Behm (John D. Nickola, of counsel), for plaintiff.
Edward P. Joseph, for defendant.
*108 Before: McGREGOR, P.J., and BRONSON and MAHINSKE,[*] JJ.
PER CURIAM.
This case is an appeal from a jury verdict of no cause of action rendered against plaintiff as administrator of the estate of the decedent, William F. Argetsinger. The cause was a tort action and arose out of the shooting of the decedent by defendant, an officer of the Flint Police Department.
Appellant raises four issues in this appeal, only one of which is dispositive, as it requires that we reverse and remand for a new trial. The complaint in this cause was filed on December 19, 1967. On the first day of trial, November 20, 1968, the plaintiff filed a motion to join the City of Flint as a party defendant. The trial court denied the motion for the reason of governmental immunity, MCLA § 691.1407 (Stat Ann 1969 Cum Supp § 3.996[107]). On June 25, 1969, this Court handed down its decision in Maki v. City of East Tawas (1969), 18 Mich App 109, declaring that statute unconstitutional, insofar as it granted immunity to governmental bodies from all tort actions.
The statute was passed by the Legislature in 1964 and became effective in 1965. In the case of Briggs v. Campbell, Wyant & Cannon Foundry Company (1966), 2 Mich App 204, aff'd, 379 Mich 160, the court stated that an unconstitutional statute is void from the date of its passage. Quoting from 16 Am Jur 2d, Constitutional Law, § 177, pp 402, 403, the court stated:
"`The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the *109 date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed.'" 2 Mich App 204, 218.
Resultingly, the decision of this Court in Maki, supra, is fully retroactive and the statute declared unconstitutional there was void on the date it was passed. As a result, the trial court, through no fault of its own, erred when it did not permit the plaintiff to join the City of Flint as a party defendant. The city did not enjoy any immunity under the void statute.
Accordingly, the case is reversed and remanded for a new trial.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
