Attorney General ex rel. Kies v. Lowrey , 131 Mich. 639 ( 1902 )

Hooker, C. J.

At its 1901 session, the legislature passed local act No. 315, entitled:

“An act to incorporate the public schools of the village of Jerome, Hillsdale county, Michigan; define the boundaries thereof, provide for the election of trustees and fix their powers and duties, and provide for the distribution of the territory of the disorganized districts.”

By this act it sought to incorporate in one union and graded school district lands described in the act, which had previously been divided between several primary school districts. It named the persons who should constitute the first board of trustees, and provided for the distribution of long and short terms between them by lot; their successors to be elected by the electors of the district shortly before the expiration of their, respective terms. It provided that the primary and graded school law should apply to this district; and it may be said, in a general way, that it gave to the new district the property within its limits which had belonged to the respective districts from which it was created. It also required the new district to assume and pay the outstanding debts and obligations of the old districts. The new district did not include all of the lands comprised in the several districts from which it was organized, and the act provided that, within 30 days after the act should take effect, the board of school inspectors of the township of Somerset should meet, and attach to other school districts the portions of the several districts not included in the new.

This proceeding is in the nature of a quo warranto against the persons constituting the board, to inquire into their right to exercise and enjoy the office of trustee of said new district, which they were doing at the time the proceeding was instituted, in the effort to carry out the provisions of the act. It was commenced in October, 1901, and it cannot be said to have been unreasonably delayed.

Counsel for relatora attack the validity of this legislation. Their brief states the points thus:

“ First. It deprives this school district or municipality of the right of local self-government, guaranteed to all municipalities by the Constitution.

“ Second. The title to the act indicates, and the act itself embraces, more than one object.

“Third. The act is broader than the title. The body of the act embraces many objects not covered by the title.

“Fourth. The act, as passed, impairs the obligation of contracts, within the meaning of the Constitution of the United States and the Constitution of the State of Michigan.”

Does this act impair the right of local self-government ? Cases have, of late, been frequent where legislation has been said to impair this right of local self-government, and it would seem that different views are entertained by counsel and by the public as to the character and extent of this alleged, right. It may, therefore, be profitable to consider briefly what it is, whence it is derived, and whether it has limitations upon it, or is itself a limitation upon the authority of the State. It is often alluded .to under the name of “home rule.” As descriptive of a policy, “home rule ” is a significant and appropriate term; but, as descriptive of a right, it is indefinite, for it is legally coextensive with the right of local regulation or control, and its extent must always be tested by the Constitution. The State, ■consisting of its electors, has absolute political power, except as limited by the Federal Constitution. Until the electors have adopted a Constitution, there is no public corporation, either municipal or quasi municipal, that can resist the authority of the State, which has power to create both, and to destroy them, and to make governmental ■agencies of them. It is not necessary to discuss municipal corporations proper, because we are not dealing with one; so we may pass them with the suggestion that, under repeated decisions, they exist through the action or acquiescence of the State; are subject to regulation and control by the State, except as qualified by the provisions of the United States Constitution; and this has application to interests in the nature of private rights only, which such corporations have and enjoy.

The quasi corporations are radically different. They consist of counties, townships, school districts, highway ■districts, etc. They are governmental agencies, and it is, to say the least, doubtful if they are in any respect anything else, or have any rights that can be called private. They perform many functions, but these are for and about the business and policies of the State, which has imposed upon them the responsibility and expense of maintaining highways, schools, drains, bridges, etc. This may be called a right or an obligation, according to the views of the citizen who is taxed locally for the several purposes; but, whatever it is called, it depends upon the Constitution or law of the State, and otherwise would not exist. If upon the Constitution, the legislature has not the power to change it; but, if upon an act of the legislature, it is so subject to change. There is danger of confusing rights derived from these different sources, and it is possible to erroneously conclude that any apparent injustice in legislation is an invasion of local rights of self-government, and therefore’invalid, when that can be truly said only of such as invade constitutional rights of self-government.

The school district is a State agency. Moreover, it is of legislative creation. It is true that it was provided for in obedience to a constitutional requirement; and, whatever we may think of the right of the district to administer in a local way the affairs of the district under the Constitution, we cannot doubt that such management must be in conformity to the provisions of such laws of a general character as may from time to time be passed, and that the property of the district is in no sense private property, but is public property, devoted to the purposes of the State, for the general good, just as almshouses and courthouses are, although confided to local management, and applied to uses which are in a sense local, though in another sense general.

We insert here from counsel’s brief the alleged infringements upon local rights, upon which reliance is placed:

“ (a) The act names and appoints for definite terms (not provisionally) the officers of this municipality.

“(5) It fixes definitely the site of the central school building for said district, and the uses to be made of said building, and does not allow the resident taxpayers and voters any voice in the matter.

‘ ‘ (c) It gives arbitrary power to a board appointed by legislative enactment (and to no other) to confiscate the property of the old districts, and fixes definitely what is to be done with this property; thus depriving the resident taxpayers and voters of all voice in the matter.

“ (d) It fixes definitely what shall be done with the property of the old districts, and the uses to which it shall be put, and leaves absolutely no discretion in the local authorities nor in the trustees of said district.

“ (e) It fixes definitely what shall be done with the territory of the old districts not included in the new district, and appoints by legislative enactment the officers that are to make the disposition of this territory.

“ (/) It appoints by legislative enactment a board of school inspectors for this district, which are constitutional officers, and deprives the local taxpayers and voters of all voice in the matter.”

Among the above points, our attention is naturally attracted to “c,” wherein it is stated that the territory excluded is deprived of any share of the public property. It does not seem to be denied that the legislature may change the boundaries of districts. That has been too often done to admit of question. Numerous school districts have lost territory through city charters, and the case of Keweenaw Ass’n v. School Dist. No. 1, 98 Mich. 437 (57 N. W. 404), is conclusive upon the point. See, also, Perrizo v. Kesler, 93 Mich. 280 (53 N. W. 391), and Pingree v. Board of Education, 99 Mich. 408 (58 N. W. 333). The authority of the legislature to change the boundaries of counties, -townships, and school districts does not necessarily involve the obligation to reimburse the portion deprived of the use of the public property. Frequently such laws contain provisions for the purpose, but it is not necessary. The property is public property, held and used for the purposes of the State, which may, in the absence of constitutional prohibition, make such disposition of it as it sees fit. Mr. Dillon, in his work on Municipal Corporations (4th Ed., § 185), in discussing the enlargement of boundaries, states the general rule:

“Not only may the legislature originally fix the limits of the corporation, but it may, unless specially restrained in the constitution, subsequently annex, or authorize the annexation of, contiguous or other territory; and this without the consent, and even against the remonstrance, of the majority of the persons residing in the corporation or on the annexed territory. And it is no constitutional objection to the exercise of thispoiver of compulsory annexation that the property thus brought within the corporate limits will be subject to taxation to discharge a pre-existing municipal indebtedness, since this is a matter which, in the absence of special constitutional restriction, belongs wholly to the legislature to determine.”

A-copious note fully vindicates the text.

Again (section 187) he says:

‘ ‘ In connection with the power of the legislature to create municipal corporations and to determine their territorial extent, reference may be made to the division of toions or public corporations by legislative act or authority. There is no restriction on the general power, unless it be found in the constitution of the State. In case of division, the legislature may, as we have already seen, apportion the burden between the two, and determine the px-oportion to be borne by each. In Connecticut, ‘ the legislature,’ says the supreme court, ‘ have immemorially exercised the power of dividing towns at its pleasure, and, upon such division, apportioning the common property and common burdens in such manner as to it shall seem reasonable and equitable.’ Accordingly it may impose on one town, upon such division, the entire expense of erecting and maintaining a bridge across a river which is the dividing line between the two towns.”

And again, in section 188:

“ So it has been frequently held that if a new corporation is created out of the territory of an old corporation, or if part of its territory or inhabitants is annexed to another corporation, unless some provision is made in the act respecting the property and existing liabilities of the old corporation, the latter will be entitled to all the property, and he solely answerable for all the liabilities.”

In further elucidation of this rule, we quote section 189:

‘ ‘ But upon the division of the old corporation, and the creation of a new corporation out of part of its inhabitants and territory,-or upon the annexation of part to another corporation, the legislature may provide for an equitable appropriation or division of the property, aixd impose upon the new corporation, or upon the people and territory thus disannexed, the obligation to pay an equitable proportion of the corporate debts. The charters and constituent acts of public and municipal corporations are not, as we have before seen, contracts, and they may be changed at the pleasure of.. the legislature, subject oxxly to the restraints of special constitutional provisions, if any there be. And it is an ordinary exercise of the legislative dominion over such corporations to provide for their enlargement or division, and, incidental to this, to apportion their property, and to direct the manner in which their debts or liabilities shall be met, and by whom. The opinion has been expressed that the partition of the property must be made at the time of the division of or-change in the corporation, since otherwise the old corporation becomes, .under the rule just before stated, the sole owner of the property, and hence cannot be deprived of it by a subsequent act of the legislature. But, in the absence of special constitutional limitations upon the legislature, this view cannot, perhaps, be maintained, as it is inconsistent with the necessary supremacy of the legislature over all its corporate and unincorporate bodies, divisions, and parts, and with several well-considered adjudications.”

See, also, Township of Springwells v. Wayne County Treasurer, 58 Mich. 240 (25 N. W. 329), which impliedly recognizes this rule. See, also, Perrizo v. Kesler, supra, where Morse, C. J., explicitly concedes this power to the legislature in a school-district case.

Whatever we may think of the justice of this act (and we cannot say that the situation was not fully known and discussed by the legislature), we cannot doubt the legislative authority to change these districts, and provide for the disposal of their property and payment of their debts, as was done in this case.

The law is said to fix the site of a school building. This is not usual, but we are not convinced that it is beyond the power of the legislature to locate its schoolhouses, courthouses, and almshouses. No authority is cited to the contrary, and, without deciding the question, we may say that the sites alluded to had already been located, and one built upon, by the districts. In saying that these should be deemed to be, respectively, a schoolhouse site and the central schoolhouse for the new district, the legislature, if it had not the power to fix beyond revocation such sites, can easily be held to have made a provision which was directory merely, and, whatever we may think of their power in the premises, no one would claim that it was designed to forbid future action by the board, and we might safely eliminate the provision, if necessary to sustain the act, in accordance with a common and well-understood rule.

But it.is said that some of the territory was left out of the new district, and that the legislature fixed definitely what should be done with it, and appointed the officers who should attach it to new districts. I£ this opinion is correct upon the first point discussed, it cannot be doubted that the legislature might itself have attached this territory to specific districts. This it did not do, but attempted to confide the subject to the township school inspectors. This was the board authorized to deal with such questions, and had been elected by the township for such purposes. This cannot be said to be an appointment by the legislature, within the case of Moreland v. Millen, 126 Mich. 381 (85 N. W. 882).

The further objection is made upon the ground that the officers were named by the legislature, and their terms fixed at one, two, and three years, respectively. We understand that four of these have been superseded by 'Successors duly elected. Presumably, two still hold their offices, and, if the legislature had not the power to appoint them, the district should have filled them under the general law. We are of the opinion that the Constitution refers to school districts as they existed under our previous Constitution and laws, and that it was expected that they would be managed by local officers, and therefore that the rule laid down in Moreland v. Millen applies as to .officers. The officers were named by the legislature for unnecessarily long terms, even if it be supposed that the appointments were intended to be provisional. Under the general law, the offices might have been filled, and may be yet. We understand from counsel, though the record does not appear to so state, that only four of respondents do not now hold under such appointment, if they are still acting as officers. The other two unlawfully hold the office, but we have no means of telling which ones of the six they are. Perhaps this is not important, as the attack seems aimed at the legislation, rather than the appointees.

The other two points need little discussion. We have so often discussed titles to acts that the law is pretty well understood; and we therefore content ourselves with saying that, in onr opinion, this title does not indicate more than one purpose, which is to give school facilities to all of the territory mentioned, under changed conditions. Nor do we think the act broader than the title.

We have already shown that the obligation of contracts is not impaired. The districts did not hold this property' under any contract with the State, but as a public agency.

The judgment of ouster should be affirmed as to such officers as now hold under the legislative appointment, if there be any thus holding. As to others, if any, it will be reversed. Neither party will recover costs.

Montgomery, J., concurred with Hooker, O. J.