Horton v. City of Kalamazoo , 81 Mich. App. 78 ( 1978 )

81 Mich. App. 78 (1978) 264 N.W.2d 128

HORTON
v.
CITY OF KALAMAZOO

Docket No. 77-1376.

Michigan Court of Appeals.

Decided January 24, 1978.

Holman, Pelletier & Horton, for plaintiff.

Morris & Culver, P.C., for defendants.

Before: DANHOF, C.J., and T.M. BURNS and M.J. KELLY, JJ.

PER CURIAM.

Defendant city, through its city commission, furnished legal counsel to defendant Fouts, a city police officer, and agreed to pay his costs in three actions brought by Fouts in the name of the state under the padlock law, MCLA 600.3805; MSA 27A.3805, to abate public nuisances. Plaintiff sued to enjoin the providing of funds and services, sought restitution and an accounting. The trial court held that the expenditures were for a public purpose. From its grant of summary judgment in favor of the defendants, plaintiff appeals.

The Michigan Constitution forbids a city to loan its credit for a private purpose, Const 1963, art 7, § 26, or to exercise its taxing power for anything but public purposes, Const 1963, art 7, § 21. The state and its political subdivisions are limited to "such legislative acts and such governmental powers as exhibit a public purpose". Gaylord v Gaylord City Clerk, 378 Mich. 273, 295; 144 NW2d 460 (1966). Public funds cannot be used to further a private enterprise. McManus v Petoskey, 164 Mich. 390, 395; 129 N.W. 681 (1911), Skutt v Grand Rapids, 275 Mich. 258; 266 N.W. 344 (1936). But what constitutes a public purpose cannot be precisely defined; to a considerable extent each case has to be decided on its own facts. Gregory Marina, Inc v Detroit, 378 Mich. 364, 393; 144 NW2d 503 (1966) (opinion by T.M. KAVANAGH, C.J.), 2 McQuillin, Municipal Corporations (3d ed), § 10.31, pp 817-818.

The actions brought by Fouts with the city's assistance are intended to abate alleged nuisances which are claimed to be the scenes of illegal activity. "It cannot be doubted that the protection of the public from illegal activity is a proper purpose for the exercise of police power". Tally v Detroit, 54 Mich. App. 328, 336; 220 NW2d 778 (1974).

The actions of a municipal legislative body enjoy a presumption of validity. Id. at 335, Watnick v Detroit, 365 Mich. 600, 606; 113 NW2d 876 (1962). The courts are especially deferential toward legislative determinations of public purpose, "[f]or determination of what constitutes a public purpose involves considerations of economic and social philosophies and principles of political science and government. Such determinations should be made by the elected representatives of the people". Gregory Marina, Inc v Detroit, 378 Mich. 364, 394; 144 NW2d 503 (1966) (opinion by T.M. KAVANAGH, C.J.), see 2 McQuillin, supra, § 10.31, p 817. Justice O'HARA's opinion in Gregory Marina went even further: "In Michigan, constructing and operating a marina is a `public purpose' because the legislature, whose business it is, said so". 378 Mich. at 406. Long ago Justice COOLEY, in The People ex rel The Detroit & Howell R Co v The Township Board of Salem, 20 Mich. 452, 475; 4 Am Rep 400 (1870), stated:

"I do not understand that the word public, when employed in reference to this power, is to be construed or applied in any narrow or illiberal sense, or in any sense which would preclude the Legislature from taking broad views of State interest, necessity or policy, or from giving those views effect by means of the public revenues. Necessity alone is not the test by which the limits of State authority in this direction are to be defined, but a wise statemanship must look beyond the expenditures which are absolutely needful to the continued existence of organized government, and embrace others which may tend to make that government subserve the general well-being of society, and advance the present and prospective happiness and prosperity of the people." (Emphasis in original.)

Since that time the trend in Michigan and nationally has been toward an even more flexible concept of public purpose. Gaylord v Gaylord City Clerk, supra, at 299, 2 McQuillin, supra, § 10.31, p 818.

Although the nuisance abatement suits brought by Fouts are nominally the actions of a private individual, that does not in itself preclude a finding that the city's assumption of their costs serves a public purpose. So far as the record reveals, the benefits of successfully prosecuting the suits would inure to the citizens of Kalamazoo generally, not just to Fouts. If the likely benefits of an expenditure to a community outweigh its likely costs, the expenditure serves a public purpose even if private parties also profit from it. Gaylord v Gaylord City Clerk, supra, at 296-297. Payments made to private parties may serve a public purpose. An example is Hays v Kalamazoo, 316 Mich. 443; 25 NW2d 787; 169 A.L.R. 1218 (1947), where the Supreme Court held that it served a public purpose for the City of Kalamazoo to join and pay dues to the Michigan Municipal League, a private association set up to lobby for municipal interests. Even closer to the situation at hand is Meehan v Parsons, 271 Ill 546; 111 N.E. 529 (1916), cited approvingly in Hays, supra, at 463, in which a city reimbursed its mayor for expenses incurred in traveling to Washington to seek Federal aid for the construction of levees. There, as here, a city properly reimbursed an employee for expenses incurred in presenting the city's case to a decision-maker on a matter of undoubted interest to the city but offering no apparent prospect of personal benefit to the employee himself.

On appeal, plaintiff advances for the first time the argument that the nuisance abatement suits were not brought in the name of the real party in interest, contrary to MCLA 600.2041; MSA 27A.2041 and GCR 1963, 201.2. We do not pass on that issue because it is untimely raised. Cook v Casualty Ass'n of America, 246 Mich. 278, 280-281; 224 N.W. 341 (1929), American Electrical Steel Co v Scarpace, 399 Mich. 306, 309; 249 NW2d 70 (1976), Three Lakes Association v Whiting, 75 Mich. App. 564, 575; 255 NW2d 686 (1977).

Affirmed.