MAKI v. CITY OF EAST TAWAS

T.G. KAVANAGH, J.

In December of 1965, the plaintiff, Leo Maki, went to the defendant's city dump to discard some refuse. He dumped the refuse at an area designated by the attendant city employee and then remained to talk to the attendant. While inquiring about a bicycle part, a small explosion occurred in a nearby refuse fire and the plaintiff was struck in the left eye by what appeared to be a .22 caliber bullet.

The plaintiff later lost the use of his left eye and he sued the defendant city for his ensuing disability.

The plaintiff originally based his claim upon negligence and counts of gross negligence and nuisance were later added. In answer, the city filed a motion for accelerated judgment asserting that 1964 PA 1964, No 170, § 7 (MCLA § 691.1407; Stat Ann 1969 Rev § 3.996 [107]) held them immune from such a suit. The circuit judge denied the defendant's motion stating that the foresaid § 7 was unconstitutional as it did not fall within the object embraced in the title of the act. With the defendant thus stripped of immunity and after the plaintiff had voluntarily struck from his complaint his allegations of negligence and gross negligence the case proceeded to a jury trial solely on the theory of nuisance. The jury returned a verdict of $12,500 for the plaintiff and found unanimously on a special finding that the city had not maintained an intentional nuisance but did find on a vote of ten to two the the city had maintained a nuisance arising "out of the manner of operation".

The Court of Appeals affirmed the trial judge and the defendant appealed to this Court.

The governmental immunity statute, PA 1964, No 170 § 7 (MCLA § 691.1407; Stat Ann 1969 Rev § 3.996 [107]) states:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein said government agency is engaged in the exercise and discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is hereby affirmed." (Emphasis added.)

The plaintiff claims that the created immunity of § 7 encompasses on its face immunity from all tort liability and if such is the scope of § 7, plaintiff claims it would create a broader and more inclusive governmental immunity than is expressed in the title to PA 1964, No 170:

"An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in a governmental function, for injuries to property and persons caused by negligence; to define and limit such liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of such liability; to provide for defending certain claims made against public officers and paying damages sought or awarded against them; and to repeal certain acts and parts of acts." (Emphasis supplied.)

If the act's created immunity from "tort liability" is broader in reach than the title's immunity "for injuries to property and persons caused by negligence", the plaintiff claims § 7 would violate the prohibition of Const 1963, art 4, § 24 that no law shall embrace more than one object which shall be expressed in its title.

In 1888 we quoted the observations made in Justice COOLEY'S treatise on Constitutional limitations on our duty in determining whether an act was within in the scope of its title. As in other areas his comments are still relevant today:

"`As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might, with entire propriety, have been embraced in one enactment with the matters indicated by the title, but which must now be excluded because the title has been made unnecessarily restrictive. The courts cannot enlarge the scope of the title. They are invested with no dispensing power. The constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so.'" In the Matter of Charles Hauck (1888), 70 Mich. 396, 403.

We have often held that this constitutional stricture on statutory enactments was not a hollow formality. MacLean v. State Board of Control for Vocational Education (1940), 294 Mich. 45 synopsizes our consistent adherence to the principle that an act shall not exceed the scope of its title. We said in MacLean: pp 48, 49:

"The constitutional provision was designed mainly to prevent the legislature from passing laws not fully understood, Thomas v. Collins [1885], 58 Mich. 64; it was intended that the legislature, in passing an act, should be fairly notified of its design, Attorney General, ex rel. Longyear, v. Weiner [1886], 59 Mich. 580; and that legislatures and parties interested might understand from the title that only provisions germane to the object therein expressed would be enacted, Blades v. Board of Water Commissioners of Detroit [1899], 122 Mich. 366; and to avoid bringing into one bill subjects diverse in their nature and having no necessary connection, but with a view to combining in their favor the advocates of all — or what is commonly spoken of as log-rolling in legislation. State Mutual Rodded Fire Ins. Co. v. Foster [1934], 267 Mich. 118."

The title to PA 1964, No 170 indicates that the act should create immunity for governmental acts of negligence. However, the act itself, in § 7, creates immunity for the much broader area of governmental torts. It is apparent from even a cursory examination of any legal encyclopedia or dictionary that an action based on "negligence" is a species of a generic action based in torts. As the trial judge pointed out, the headings in Prosser on Torts refer to actions based on nuisance, direct trespass, assault and battery, false arrest, deceit, defamation, abuse of process, malicious prosecution and economic duress — all of which are tort actions apart from negligence and all of which might be brought against a governmental body.

It would appear, then, that to hold § 7 constitutional we would be required to reduce the scope of the government's § 7 immunity from immunity for all "torts" to immunity from "torts caused by negligence". Such an interpretation, however would require this Court to engage in judicial legislation.1

Such interpretation in the name of preserving a statute's constitutionality2 would exhaust Const 1963, art 4, § 243 of all meaning. "Negligence" and "tort" remain legal terms of art and while their precise definitions are often elusive they are not synonymous.4 To treat them as synonymous now would be reminiscent of Lewis Carroll's Humpty-Dumpty as he scornfully chastised Alice "when I use a word it means just what I choose it to mean — neither more nor less." We decline to overtly engage in such activity. Rather our duty and our problem

"is to construe what Congress has written. After all, Congress expresses its purpose by words. It is for us to ascertain — neither to add nor to subtract, neither to delete nor to distort." Cases of Jam v. United States (1951), 340 U.S. 593, 596 (71 S.Ct. 515, 518; 95 L Ed 566, 570). See also People v. Blumrich (1914), 183 Mich. 133, 137.

So construing, we hold that § 7 exceeds the scope of its title and is therefore unconstitutional and invalid. We further hold that § 7 is independent of the remainder of PA 1964, No 170 and can therefore be severed from the act.5 The remainder of PA 1964, No 170 is otherwise complete in itself and capable of being carried out without reference to the unconstitutional § 7.6

In this posture it is unnecessary to decide what effect the nature of this nuisance recovery (i.e., "manner of operation") has on municipal immunity.7

Accordingly we affirm the jury's verdict.

No costs, a public question being involved.

T.M. KAVANAGH, C.J., and ADAMS and SWAINSON, JJ., concurred with T.G. KAVANAGH, J.

BLACK, J. (concurring in affirmance).

When the defendant municipal corporation applied for leave to review the decision of Division 3 (granted February 10, 1970; 383 Mich. 766), I concluded upon review of the papers submitted and the opinions below that Judges DANHOF and HOLBROOK had reasoned out the right response for those combined and obviously difficult questions of statutory construction and constitutional validity which their opinion portrays (Maki v. City of East Tawas [1969], 18 Mich.App. 109). As I recall most here came then to similar conclusion, yet as recommended to us by one of our Commissioners we granted the application on account of the widespread importance of such questions. In a word, it was deemed best that the defendant-stated question,

"Was plaintiff's cause of action barred by provisions of Act 170 of PA 1964, being MSA 3.996(101) et seq?"

should come to decision by this Court in the light of the specific facts of the case as specially determined by the jury's verdict.

The appeal was submitted January 8, 1971. Since then two opinions submitted by two Justices have been submitted to us for consideration. One as I read it stands for affirmance of the judgment of affirmance which the Court of Appeals entered. Another disagrees, both as to reasoning and result. Being of continuing view that the DANHOF-HOLBROOK opinion above is the most acceptable of the three that are available for endorsement, and realizing that this Court chronically has too many opinions of given cases, I have decided to adopt as my own that part of the DANHOF-HOLBROOK opinion which commences on page 119 with the sentence "We come now to the constitutional question.", and continuing through to the end of that opinion on page 125.

The above will satisfy the requirements of Const 1963, art 6, § 6. On strength thereof I vote to affirm, without an award of costs.

WILLIAMS, J. (dissenting.)

This action brought by the plaintiff to recover for personal injuries incurred while he was at a municipal garbage dump operated by the City of East Tawas raises two questions. First, pursuant to Article 4, § 24 of the Michigan Constitution, restricting an act of the legislature to the scope of its title, should § 7 of the governmental immunity statute, which grants immunity to governmental agencies for all tort liability when engaged in governmental functions,1 be reduced to the scope of the act's title which says the act grants immunity to governmental agencies for injuries to persons or property caused by negligence2 or should § 7 be held unconstitutional in toto? Second, if § 7 is held to mean only torts caused by negligence, is a nuisance in the manner of the operation of a municipal dump within the scope of governmental immunity for such negligent torts or does the nuisance label take it outside the reach of immunity for injuries to persons caused by negligence?

I

Article 4, § 24 of the Michigan Constitution states: "No law shall embrace more than one object, which shall be expressed in its title." There is no question that § 7 embraces an object not expressed in its title in violation of Article 4, § 24. The term "tort" contained in § 7 is clearly broader in scope than the term "negligence" embodied in the title of the act for, as the Court of Appeals and the trial judge noted, tort includes intentional torts and strict liability torts as well as those based on negligence.

The difficult problem is whether the term "tort" in § 7 should be construed narrowly to mean only torts caused by negligence so that it is no broader in scope than the title of the act.

It is important to note that we are not dealing with the common-law rule of immunity which is a judge-made rule. Here, we have a statute to construe and it is incumbent upon us as to sustain the statute's constitutionality by construction of the language to preserve the intent the legislature manifested in enacting the statute if that can properly be done.

When this Court has been confronted on other occasions with the situation of a statutory provision exceeding the scope of its title, we have adopted a narrow construction of the statute to preserve the statute's constitutionality. Scott v. Alsar Company (1953), 336 Mich. 532 where the workmen's compensation act was construed as not applying to independent contractors; Arnold v. Ogle Construction Company (1952), 333 Mich. 652 where a certain provision of the workmen's compensation act was construed to refer only to accidental injuries to conform to the scope of the title; State Mutual Rodded Fire Insurance Co. v. Foster (1934), 267 Mich. 118 where the part of an act dealing with sureties was held unconstitutional since the title made no reference to sureties; and Booth v. Eddy (1878), 38 Mich. 245 where the term "assignees" was construed narrowly to conform to the scope of the title. See also MacLean v. State Board of Control for Vocational Education (1940), 294 Mich. 45; and People v. Smith (1929), 246 Mich. 393.

What, in effect, these precedents say is that we must follow the rule of partial invalidity by construing an act's provisions narrowly to conform to the title where such construction works to fulfill legislative intent. The language of Arnold v. Ogle Construction Company, supra, 663, 664 is particularly illuminating on this point:

" * * * The application of such rule requires that the provisions of part 2 of the workmen's compensation law, in question here, * * * shall be interpreted as within the scope of the title and not repugnant thereto, and consequently as permitting the payment of compensation for disability resulting from accidental injuries only. If the legislature in the enactment of said amendments had intended such drastic change in part 2, as is now claimed was made, I think that such purpose would have been expressed in clear and unequivocal terms by an affirmative statement to that effect. Likewise the reference to `accidental injury' would have been deleted from the title. The omission of such action furnishes cogent proof that it was not the purpose of the legislature to strike from part 2 the requirement that disability of an employee should not be compensable thereunder unless caused by an accidental injury only * * *."

It is appropriate to inquire here whether reading § 7 as giving immunity for negligent torts carries out the legislative intent. The background leading up to the enactment of the statute here in question clearly indicates that the legislature desired to restore immunity for municipalities in the performance of governmental functions.3 Torts arising out of negligence are certainly the most common type of tort. Whether the legislature wanted to give immunity for torts based on strict liability or intentional conduct is unclear, but what is clear is that they certainly wanted governmental immunity for that which is headnoted in the title, namely torts arising out of negligent conduct. To declare § 7 null and void in its entirety would judicially defeat this obvious legislative purpose. Therefore, we apply the rule of partial invalidity and hold that the term "tort" in § 7 shall be construed to refer to torts caused by negligent conduct.

In so doing we pay heed to the spirit of the statutory rule on severability which states:

"If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application * * *." (MCLA § 8.5 [Stat Ann 1968 Rev § 2.216].)

II.

The next question is whether the jury's finding that the defendant maintained a nuisance in the manner of operation of its municipal dump places the City of East Tawas outside of the scope of immunity for negligent torts which occur during the performance of a governmental function.

Nuisance is a judge-made exception from the common-law rule of governmental immunity. The statute here in question does not alter the liability of governmental agencies for nuisance. This conclusion is based upon the following language of § 7:

"Except as otherwise provided herein, this act shall not be construed as modifying * * * the immunity of the state * * * as it existed heretofore * * *."

In Denny v. Garavaglia (1952), 333 Mich. 317, 331, this Court classified nuisances resulting in personal injury into three classes. The first class consists of nuisances based on illegal conduct; the second class involves nuisances based on conduct intended to bring about conditions which are in fact a nuisance; and the third class comprises nuisances based on negligent conduct. Since the jury found that there was no intentional nuisance4 and since the City of East Tawas broke no laws in maintaining its dump, what we have here where the jury found a nuisance in the manner of operation is a nuisance arising out of negligent conduct.

Our Court has had the opportunity to illuminate the relationship between nuisance and negligence in a series of cases where we have held that contributory negligence is a good defense to nuisances based on negligent conduct but not for the other two classes of nuisances. Denny v. Garavaglia, supra; Dahl v. Glover (1956), 344 Mich. 639; Young v. Groenendal (1969), 382 Mich. 456; and Awad v. McColgan (1959), 357 Mich. 386.

In our most recent opinion on the subject of the nuisance exception from governmental immunity, Buckeye Union Fire Insurance Company v. Michigan (1970), 383 Mich. 630, 635, Justice ADAMS, writing for a unanimous Court, wrote:

"The Royston, Denny, Dahl and Young cases involved claims for personal injuries and are within that class of cases described as nuisance having its origin in negligence and as to which contributory negligence is a defense."

Buckeye itself, however, did not involve a nuisance based on negligent conduct. Rather the nuisance was a "condition" (p 636), an old, open, dilapidated and unoccupied building which was a fire hazard, declared dangerous and ordered demolished by the city. Any negligence involved was strictly incidental and this Court denied immunity to the state, which had acquired the property by tax sale (p 638).

The distinction between Buckeye and Maki was clearly indicated by Justice ADAMS in speaking as follows of Buckeye:

"Negligence, which is antecedent to and responsible for the nuisance, is not our concern here even though the nuisance in this case may have been created by negligent acts." (p 635.)

In Maki the jury specially and specifically found that the nuisance was in the "manner of operation," or in other words nuisance based on negligent operation. Presumably this had reference to nuisance based on one or more of such things as no restrictions on dumping of live ammunition, lighting trash fires during dumping hours, or allowing people to wander about the entire dumping area. In other words, in Buckeye there was no way to get rid of the nuisance, which was a condition, except to abolish the building, whereas in Maki the jury verdict implied that the dump if properly "operated" would not be a nuisance.

When a nuisance based on negligent conduct is at issue, our Court has treated the action as a negligence action. In our latest opinion on the matter, Young v. Groenendal, supra, 461, 462, Justice DETHMERS wrote:

"A problem of labels is involved. Can denominating defendants' action or inaction a nuisance, rather than negligence, change the law as to availability of the defense of contributory negligence, or will the court peer through the label to the nature of the causes of the damage to determine the question? We think the latter is and should be the prevailing rule."

If we failed to peer through the label and treated a nuisance based on negligent conduct as a separate cause of action for which there was no governmental immunity, we would make the statutory rule of immunity for negligent torts a nullity since plaintiffs would simply cast any negligence action in the form of a nuisance based on negligent conduct and thus avoid governmental immunity.

By finding that a nuisance based on negligent conduct does not escape the immunity provision of § 7, we do not terminate the nuisance exception from the immunity rule. Nuisances which are based on intentional conduct, illegal conduct or conduct, such as that characterized as ultrahazardous, for which strict liability in tort is imposed, constitute a class of nuisances for which there is no governmental tort immunity.

Arguably, the plaintiff could still hold the City of East Tawas liable on the theory that operating a municipal garbage dump is a proprietary function. The immunity statute defines a proprietary function narrowly as "any activity conducted primarily for profit." Although the City of East Tawas charges non-residents a fee to use the dump, quite clearly the primary purpose for the dump is a health and safety one of providing residents a place to dispose of their garbage and trash. Moreover, a pre-governmental immunity statute case, Curry v. Highland Park (1928), 242 Mich. 614, found that maintaining a garbage dump was a governmental function.

III.

On the facts of this case we find that the plaintiff, Leo Maki, is barred from suing the City of East Tawas by virtue of § 7's immunity provision. In finding that a nuisance in the manner of operation of a municipal dump is a nuisance based on the absence of reasonable care which comes within the scope of § 7's immunity for negligent torts occurring in the performance of a governmental function, let it not be inferred that this Court is biased either way on governmental tort immunity. This is a case where the legislature has spoken in an area where it properly has jurisdiction and the legislative intention should prevail.

T.E. BRENNAN, J., concurred with WILLIAMS, J.