text:
    ANTCLIFF v STATE EMPLOYEES CREDIT UNION
    Docket No. 78-1537.
    Submitted May 1, 1979, at Lansing.
    Decided February 5, 1980.
    Leave to appeal applied for.
    Howard Antcliff was permanently and totally disabled when a scaffold upon which he was working fell to the ground. The accident occurred at the construction site of the State Employees Credit Union building in Lansing. AntclifFs wife Geraldine and Antcliff, by his guardian (Geraldine), brought an action for damages against the State Employees Credit Union; Christman Construction Company, Inc., the general contractor; Manson, Jackson & Kane, Inc., the architects; and Spider Staging Sales Company, Inc., the manufacturer of the scaffold. Christman brought a third-party complaint for indemnification against Austins Painters Flint, Inc., AntclifFs employer. Prior to trial, plaintiffs settled with Christman and released the credit union and the architect. Thus, the only defendant at the time of trial was Spider, against whom the plaintiffs proceeded on theories of negligence and breach of express and implied warranties. The Ingham Circuit Court, Jack W. Warren, J., entered a judgment on a jury verdict of no cause of action, and plaintiffs appeal. Held:

    1. The cause of the accident was the failure of a wooden "outrigger” on the roof of the building, from which the scaffold was suspended. The trial court correctly ruled that Spider was under no duty to supply metal outriggers with the scaffold. The outriggers, or any other suspension devices which might be employed to suspend the scaffold, are separate elements of the system of which the scaffold is also an element. The scaffold itself was not defective.

      References for Points in Headnotes
    [1] 63 Am Jur 2d, Products Liability §§ 63, 132.
    Manufacturer’s or seller’s duty as to product design as affecting his liability for product-caused injury. 76 ALR2d 91.
    Products liability: product as unreasonably dangerous or unsafe under doctrine of strict liability in tort. 54 ALR3d 352.
    Duty of manufacturer to equip product with safety device to protect against patent as obvious danger. 95 ALR3d 1066.
    [2] 63 Am Jur 2d, Products Liability §§ 35, 36.
    Products liability: manufacturer’s responsibility for defective component supplied by another and incorporated in product. 3 ALR3d 1016.
    [3] 63 Am Jur 2d, Products Liability §§ 50, 52, 53.
    [3, 4] Manufacturer’s or seller’s duty to give warning regarding product as affecting his liability for product-caused unjury. 96 ALR2d 9.
    [4] 63 Am Jur 2d, Products Liability § 51.
    [5] 31 Am Jur 2d, Expert and Opinion Evidence § 16.

      2. There is no duty to instruct a purchaser or user of a product in the proper use of the product, separate from the duty to warn of dangers created by improper use.
    3. The trial court properly instructed the jury that Spider had no duty to warn against using inadequate outriggers if the danger of an inadequate support system was obvious or known to the user.
    4. The trial court did not abuse its discretion in excluding certain expert testimony.
    Affirmed.
    1. Products Liability — Duty — Manufacturers — Safety Devices.
    A manufacturer is under a duty to users of its product to furnish a product which is not unreasonably dangerous when used in the manner intended or in a manner reasonably foreseeable by the manufacturer; the omission or inadequacy of a safety device may render a product unreasonably dangerous.
    2. Products Liability — Duty — Manufacturers — Components of Systems.
    A manufacturer of a component for use in a suspended work-stage system is under no duty to supply other components of such a system, and the failure of a component not supplied by the manufacturer, which results in injury to a plaintiff, creates no liability toward the plaintiff on the part of the manufacturer.
    3. Products Liability — Duty — Manufacturers — Use of Product.
    A manufacturer is under no duty to instruct in the proper use of a product, separate and apart from the duty to warn of dangers created by improper use.
    4. Products Liability — Manufacturers — Obvious Dangers.
    A manufacturer is under no duty to warn of dangers in the use of its product which are obvious to all.

      5. Witnesses — Evidence — Expert Testimony — Judge’s Discretion.
    A trial court has the discretion to determine whether or not expert testimony is required on a matter at issue.

      Church, Wyble, Kritselis, Anderson & Robinson (by Thomas H. Hay), for plaintiffs.

      Joselyn, Rowe, Jamieson & Grinnan, for defendant Spider Staging Sales Company, Inc.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and W. Van Valkenburg, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   R. M. Maher, J.

Plaintiffs appeal as of right from a jury verdict of no cause of action as against Spider Staging Sales Company, Inc., the sole remaining defendant at the time of trial (hereinafter Spider).

This lawsuit arose out of a construction accident occurring on July 7, 1970, at the site of the State Employees Credit Union building in Lansing. Plaintiff Howard Antcliff was injured when the scaffold upon which he was working fell to the ground, taking him with it. He is permanently and totally disabled as a result of the accident, and requires round-the-clock nursing care.

Geraldine Antcliff, wife of Howard, and Howard, by his guardian (Geraldine), brought this action against Christman Construction Company, Inc., general contractor on the project; Manson, Jackson & Kane, Inc., architects; State Employees Credit Union, owner of the building under construction; and Spider Staging Sales Company, Inc., manufacturer of the scaffolding. Christman filed a third-party complaint for indemnification against Austin’s Painters Flint, Inc., Antcliff’s employer at the time of the accident. Prior to trial, plaintiffs settled their claim against Christman Construction and released Christman, the architect, and the credit union. The case proceeded to trial on theories of negligence and breach of express and implied warranties by Spider.

Defendant Spider manufactures and sells powered staging equipment for use in construction and maintenance of buildings, bridges and similar structures. The particular unit involved in this litigation is their model ST-18, consisting of a metal platform with railings, a motorized winch mounted below the platform, and a wire rope wound on the winch and leading through the platform and through a guide mounted above the platform to some means of support overhead. On the day of the accident, Howard Antcliff (hereinafter plaintiff) and James Hathcock, a co-worker, were standing on an apparatus consisting of two ST-18 units connected by a 25-foot aluminum platform manufactured for this purpose by Spider. Each unit was suspended from a 4 x 4 wooden beam (called an outrigger) extending approximately 15 inches over the edge of the roof parapet and counterweighted by means of sand bags at the other end of the beam.

The sole eyewitness to the accident was James Hathcock. Hathcock testified as follows: Plaintiff and he had been working at opposite ends of the scaffold, covering windows on the south face of the building in preparation for the next day’s sandblasting operation; Hathcock walked to the east end of the scaffold, where plaintiff was working, to borrow a cigarette; plaintiff was standing on the platform of the ST-18 itself; as Hathcock took a cigarette and turned away, he felt the scaffolding fall out from under him; Hathcock grabbed for plaintiff, apparently without success; he remembered seeing plaintiff crouched in the "buggy” as it fell; Hathcock remained suspended by his safety line; plaintiff’s safety line apparently failed.

Post-accident investigation revealed that the outrigger on the east end of the scaffold had pulled loose from the counterweights and fallen to the ground and that the west outrigger had broken at the point where it crossed the parapet. The wreckage of the scaffold lay beneath the west outrigger, at right angles to the wall on which Antcliff had been working. It was plaintiffs’ theory that the west outrigger broke first, throwing the entire weight of the scaffolding on the east outrigger, causing it to pull out from its counterweights and plunging the scaffold to the ground. Spider, on the other hand, theorized that the east outrigger pulled loose first, throwing the entire weight on the west outrigger and causing it to break.

Plaintiffs alleged that Spider was negligent in failing to supply metal outriggers with their staging devices, in failing to warn users not to use wooden outriggers, in advising plaintiff’s employer to use wooden supports, in failing to instruct users of its product in proper rigging techniques and in designing and selling a product which put dangerous sudden stress on the suspension system as a result of slippage of the cable on the drum of the winch, caused by uneven winding.

Plaintiffs further alleged that Spider breached the implied warranties of merchantability and fitness for purpose by falsely representing that its product could safely be suspended from wooden outriggers, that the ST-18 was a complete and safe system, that the cable would level wind and would not put undue stress on the suspension system by cable slippage, that the product could be operated without special instruction, and that Spider’s repair manual and advertising brochure were adequate to instruct users in safe rigging techniques.

On the first day of trial, prior to the presentation of any evidence, Spider moved for the suppression of evidence intended to show that Spider breached its duty to instruct in proper rigging techniques, on grounds that the law imposes no such duty on Spider. Spider further moved to suppress evidence relating to an alleged duty to supply metal outriggers with its staging units. The court ruled that evidence regarding breach of the duty to warn against use of inadequate materials for outriggers would be received, but made no express ruling on duty to instruct in rigging techniques. Regarding the duty to supply metal outriggers, the court ruled that the law imposed no such duty upon a manufacturer. The issue of duty to instruct purchasers in proper rigging techniques reappeared later in the trial, at which time the trial court ruled that Spider had no such duty to purchasers of its equipment.

Plaintiffs claim on appeal that the trial court erred in ruling that Spider had no duty to supply metal outriggers and no duty to instruct in proper rigging techniques. Plaintiffs also assign as error certain rulings on admissibility of evidence, certain of the instructions to the jury, and the court’s refusal to give certain instructions requested by the plaintiffs.

Plaintiffs’ first claim is that the trial court erred in ruling that Spider was under no duty to supply metal outriggers along with its ST-18 model and in refusing to admit evidence and to instruct the jury regarding such a duty. Plaintiffs argue that the outriggers are a safety device which must be included as part of a total package in order to render the ST-18 reasonably safe for its intended or foreseeable uses. In support of their argument, plaintiffs cite several cases involving, for the most part, industrial machines which lacked adequate shields or other safety devices. See, for example, Casey v Gifford Wood Co, 61 Mich App 208; 232 NW2d 360 (1975) (failure to provide shield for ice crushing machine), Byrnes v Economic Machinery Co, 41 Mich App 192; 200 NW2d 104 (1972) (providing shield which had to be removed for maintenance of machine), and McKinch v Dixon, 391 Mich 282; 215 NW2d 689 (1974) (failure to provide screen to prevent dirt from entering brake cylinder).

There is no question that a manufacturer is under a duty to users of its product to furnish a product which is not unreasonably dangerous when used in the manner intended or in a manner reasonably foreseeable by the manufacturer. Elsasser v American Motors Corp, 81 Mich App 379; 265 NW2d 339 (1978). A product may be rendered unreasonably dangerous by the omission or inadequacy of a safety device. Coger v Mackinaw Products Co, 48 Mich App 113; 210 NW2d 124 (1973).

The difficulty with plaintiffs’ argument is that the outriggers are not a device which may be integrated into the ST-18 itself to make it safer, but a separate element in a system of which the ST-18 is also a component. Plaintiffs argue that because the ST-18 must be suspended by some means in order to be used, the outriggers should be considered an integral part of the ST-18 just as, for example, a safety shield is considered part of an ice crusher, see Casey v Gifford Wood Co, supra. However, although the ST-18 must unquestionably be suspended by some means, it need not necessarily be suspended by outriggers. Testimony at trial revealed that staging like the ST-18 may be suspended by several methods, only one of which requires use of outriggers. There are many situations in which use of outriggers would be inadvisable, dangerous or simply impossible (e.g. suspending staging from a bridge). To hold, as plaintiffs urge, that outriggers are an integral part of Spider’s product is to ignore the evidence adduced at trial.

The outriggers, parapet hooks, tank rollers and other suspension devices may be viewed either as separate components of a system or as accessories to be used with the ST-18. In either case, Spider is under no duty to supply one or all of the suspension devices simply because it undertook to furnish an ST-18 to plaintiff’s employer. It must be emphasized that the jury found that the ST-18 itself was not defective, either in manufacture or in design. Spider therefore fulfilled the only duty which the law imposes upon it: the duty to furnish a safe ST-18. It was not a failure of the ST-18 which caused plaintiffs’ harm, but rather a failure of a separate device, not furnished by Spider, which is at most an accessory to the ST-18.

It should be made clear that this is not a case in which a defendant voluntarily undertakes to do a task and does it negligently, or in which a special relationship between a defendant and a plaintiff imposes a duty of care over and above the usual duty. Cf. Farwell v Keaton, 396 Mich 281; 240 NW2d 217 (1976), Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), Wilhelm v The Detroit Edison Co, 56 Mich App 116; 224 NW2d 289 (1974). Spider assumed no responsibility for designing and fabricating a suspension system suitable for the needs of plaintiff’s employer, but simply furnished a component for use in such a system. Cf. Robertson v Swindell-Dressler Co, 82 Mich App 382; 267 NW2d 131 (1978).

The limits of the component manufacturer’s duty was briefly discussed in Jordan v Whiting Corp (On Reh), 49 Mich App 481; 212 NW2d 324 (1973), rev’d in part on other grounds 396 Mich 145; 240 NW2d 468 (1976), in which the plaintiff therein alleged that his injury resulted from improper installation of an electrical device apparently manufactured by Whiting, from improper design of the crane of which the device was a component, and from failure to install a cover over certain electrical bars. This Court upheld a directed verdict for the defendant therein, saying:

"This defendant manufactured components which were ordered and bought from it by Dearborn. As to foreseeability and tort liability, Whiting could not have known — at least so far as the record shows — how these components were to be fashioned or fabricated into the completed unit. The obligation that generates the duty to avoid injury to another which is reasonably foreseeable does not — at least yet — extend to the anticipation of how manufactured components not in and of themselves dangerous or defective can become potentially dangerous dependent upon the nature of their integration into a unit designed, assembled, installed, and sold by another.” 49 Mich App at 486.

With regard to the lack of a cover over the bars, the Court said:

"We can hardly be expected to hold, since the exposed bars did not violate any electrical code legislatively imposed (a fact conceded by plaintiff), that Whiting had the obligation, and more importantly the right to insist that the purchaser buy the covers.” 49 Mich App at 488.

Just as the manufacturer in Jordan, supra, had no obligation to insist that the purchaser buy a cover for electrical bars, Spider had no obligation to require that plaintiffs employer purchase metal outriggers. This is especially true where, as is the case here, metal outriggers are but one of many suspension devices which may be utilized in conjunction with Spider’s product.

Michigan is not alone in its reluctance to impose a duty to furnish accessories on a manufacturer. In Leonard v Albany Machine & Supply Co, 339 So 2d 458 (La App, 1976), the Louisiana court rejected the argument that the manufacturer of a lumber trimmer intended to be incorporated into a complete sawmill operation had a duty to provide a shield to protect the operator, noting that industry custom put that duty on the sawmill designer and that it was difficult to tell what shields would be needed before the machine was incorporated into the total design of the mill.

Similarly, in the case before us, Spider furnished its ST-18 staging device with knowledge that it would be used in conjunction with other equipment, including some device for suspending the ST-18 from some overhead support. Spider did not, however, know the precise means which would be used to suspend the ST-18 in future jobs undertaken by plaintiffs employer, a painting contractor which offered a variety of services on construction sites. There was also ample evidence to establish that workers in the trade customarily did their own rigging at least in part to assure themselves that the scaffolding was safely rigged. In view of the wide variety of rigging devices and techniques available, the varying conditions presented by different contracting jobs, and the relative expertise of the consumers of this product, it seems reasonable to leave the task of selecting suspension devices to purchasers rather than to impose a duty to furnish such devices on the manufacturer. The burden which would result from imposition of a duty to furnish accessories was described by the Illinois Appellate Court as follows:

"Needless to say, this would require the manufacturer to confer with every prospective buyer and make a judgment, at his peril, of what the buyer needed. Alternatively, the manufacturer would be under a duty to recommend to or provide the buyer all of the accessories available regardless of how limited was the intended use. No case has been cited, nor do we think one exists, extending the doctrine of strict liability to this extreme.” Weiss v Rockwell Manufacturing Co, 9 Ill App 3d 906, 912; 293 NE2d 375, 379 (1973). We agree with the Illinois court that imposing such a duty would be an unwarranted expansion of the law of products liability.

Plaintiffs’ second claim is that the trial court erred in refusing to admit evidence and to instruct the jury to the effect that Spider had an obligation to instruct purchasers and users of its products in proper rigging techniques. Plaintiffs argue that Michigan law imposes a duty to instruct in proper use of a product, separate and apart from the duty to warn of dangers created by improper use. We disagree. The cases cited by plaintiffs in support of their contention all involve either failure to warn of special precautions which must be taken to guard against hidden dangers, see Hill v Husky Briquetting, Inc, 54 Mich App 17; 220 NW2d 137 (1974), or inadequacy of the warning given, see Gutowski v M & R Plastics & Coating, Inc, 60 Mich App 499; 231 NW2d 456 (1975). See also Smith v ER Squibb & Sons, Inc, 405 Mich 79; 273 NW2d 476 (1979). The trial court properly instructed the jury on Spider’s duty to warn of dangers inherent in the use of the ST-18; specifically, the danger of using wooden outriggers to suspend the ST-18. The court’s instructions in this regard accurately stated the limits of Spider’s duty toward users of its products.

Plaintiffs contend that the trial court erred in instructing the jury that Spider had no duty to warn against using inadequate outriggers to suspend the ST-18 if the danger of an inadequate support system was obvious or known to the user, citing Casey v Gifford Wood Co, supra, and Shears v Pardonnet, 80 Mich App 358; 263 NW2d 373 (1977). Those cases, however, did not involve the duty to warn against dangers inherent in the use of the product, but rather involved the manufacturer’s alleged failure to equip its product with safety devices or shields. The rule on duty to warn has long been and continues to be that there is no duty to warn of dangers which are obvious to all. Hensley v The Muskin Corp, 65 Mich App 662; 238 NW2d 362 (1975), Gronlie v Positive Safety Manufacturing Co, 50 Mich App 109; 212 NW2d 756 (1973). The trial court’s instructions were proper in this regard.

Plaintiffs also assign as error the trial court’s exclusion of expert opinion testimony on certain matters, including foreseeability of the accident and adequacy of Spider’s brochures as warnings. Whether expert testimony is required on a subject is a matter within the discretion of the trial court. Dowell v General Telephone Co of Michigan, 85 Mich App 84; 270 NW2d 711 (1978), Friedman v Farmington Twp School District, 40 Mich App 197; 198 NW2d 785 (1972). We see no abuse of discretion here.

The plaintiffs claim that reversal is mandated by the recent Supreme Court decision in Tulkku v Mackworth Rees Div of Avis Industries, Inc, 406 Mich 615; 281 NW2d 291 (1979), which held that contributory negligence is not a defense in a products liability case where it is alleged that the manufacturer was negligent in failing to provide an adequate safety device. However, Tulkku is not applicable to the instant case, since we have found previously that the outriggers were not safety devices.

Plaintiffs assign as error certain other portions of the trial court’s instructions. We are of the opinion that, considered in their entirety, the court’s instructions fully and properly apprised the jury of the applicable law. Berlin v Snyder, 89 Mich App 38; 279 NW2d 322 (1979).

The judgment of the trial court is affirmed. Costs to defendant Spider.

       After the close of evidence, plaintiffs withdrew their claim of breach of express warranty, and only the negligence and implied warranty counts went to the jury.

       Except as hereafter noted, all equipment involved was owned by Austin’s Painters, plaintiffs employer.

       Although Howard Antcliff appeared at trial and answered a few questions by means of pointing at the desired answer, he was not sworn as a witness. Plaintiff could neither speak nor hear at the time of trial.

       The wreckage lay parallel to a wall extending out at right angles from the south face of the building (on which the scaffold had been hung) immediately west of the west outrigger.

       According to a catalogue offered into evidence by plaintiffs, Spider itself offers no fewer than nine different devices which may be used to suspend the ST-18, depending upon the situation in which the staging is used. Special devices exist, for example, which attach to the support beams of a building to permit the ST-18 to be used in factories, etc.

       Although plaintiffs sought to establish at trial that construction safety codes prohibited the use of wooden outriggers, such codes apply to contractors, not necessarily to equipment manufacturers. Cf. Blanchard v Monical Machinery Co, 84 Mich App 279; 269 NW2d 564 (1978). Moreover, even if use of wooden outriggers is improper, their use in conjunction with an otherwise defect-free ST-18 would not create a defect in the ST-18. The defect, if any, would be in the outriggers.

       The trial court instructed the jury, with regard to duty to warn, as follows:
      "I instruct you that if you find that the defendant, Spider, knew or should have known that the ST-18 powered suspension staging did not, in fact, level wind the wire rope in all instances which could result in an uneven wire rope buildup, which in turn could cause its product to have a sudden dropping and jerking propensity then you may find the defendant was negligent in failing to advise and warn the users of this propensity.
      "I further instruct you that if you find that the defendant, Spider, knew or should have known that the effects of the dropping and jerking could result in a failure of the system to meet the four-to-one safety factor because of additional stress placed on overhead units then you may find the defendant was negligent in failing to warn against using inadequate or improper overhead units.
      "If you find from the evidence that the defendant, Spider, knew or should have known based upon the state of the art that construction materials should never be used as part of the overhead support system, you may find the defendant negligent in failing to warn its users not to use construction-type materials in suspending its product.
      "If you find that the defendant knew or should have known based upon the state of the art that tie-backs should have been used as a fail-safe system which could have supported the staging in the air in the event an outrigger failed, you may find defendant was negligent in failing to warn users that tie-backs should be used as part of their overhead support system.
      "I have instructed you regarding the duty of the defendant, Spider, to warn of the danger of not using adequate rigging to suspend the ST-18s and platform. In this regard, I instruct you further that the defendant, Spider, does not have a duty to warn against use of its scaffolding with inadequate outriggers and/or using its scaffolding without tie-backs if you find from the evidence that the danger of not suspending the ST-18s and platform with an adequate supporting system or rigging was obvious or known to the user.
      "If you find from the evidence that the defendant knew or should have known that its product was being used with wooden outriggers, and that it knew or should have known that its product and the entire scaffolding system was likely to be tested by persons jumping upon the platform, and knew or should have known that such testing could weaken wooden outriggers, then you may find that the defendant was negligent in failing to warn against such type of testing when its product was used in conjunction with wooden outriggers.
      "Although, if you find plaintiff was aware of the danger, awareness alone would not preclude you from finding the defendant liable for negligence. A danger may be obvious but not appreciated. Even where a danger is appreciated, circumstances may cause it to be forgotten. Where a person must work in a place of possible danger, the care which he is bound to exercise for his own safety may well be less than is normally required due to the necessity of giving attention to his work.”

       Furthermore, the record does not support plaintiffs’ claim that the level wind .system was in fact a "safety device” or was so presented at the trial, The fact that the mechanism which controlled the rope may have incorporated some safety features does not bring it within the rule of Tulkku, supra.


source: Caselaw Access Project

author: M. F. Cavanagh, J. Mackenzie, J.

license: Public Domain

text:
    WILLIAMS TOWNSHIP v CITY OF MIDLAND
    Docket Nos. 78-1696, 78-1697, 78-1698.
    Submitted February 14, 1979, at Lansing.
    Decided February 5, 1980.
    Leave to appeal applied for.
    John Rapanos filed a petition with the State Boundary Commission requesting the annexation of certain territory in Williams Township to the City of Midland. Williams Township is located in Bay County. The City of Midland is located in both Bay and Midland Counties with the greater portion being situated in Midland County. The commission accepted the petition and appointed two Midland County members to the panel for consideration of the annexation petition. The commission approved the annexation. Upon a request for review of the commission findings by the Township of Williams, the matter came before the Bay County Circuit Court, Leon R. Dardas, J. The questions presented in this appeal were whether the local members of the State Boundary Commission should have been appointed from Bay County or from Midland County and whether the commission had used reasonable criteria in arriving at its order permitting annexation. Judge Dardas ordered that the decision of the commission be set aside on the grounds that board members should have been appointed from Bay County and not Midland County. The court did not reach the question of whether the commission used reasonable criteria in reaching its decision. John Rapanos, the State Boundary Commission and the City of Midland appeal. Held:

    The parties’ differences stem from their conflicting interpretations of the meaning of the word "territory” as it is used in the annexation statute. The affected districts in a petition for annexation include the whole of each city or township being considered. Therefore, the county members who sit on the State Boundary Commission to vote on the question of annexation should be chosen from the county in which the greater part of the territory to be included within the adjusted boundaries lies. This is Midland County, not Bay County. On remand a determination of whether the commission used reasonable criteria in reaching its decision should be resolved.

      References for Points in Headnotes
    [1, 4] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 55-57, 66, 67, 70 et seq.

    Proper remedy or procedure for attacking legality of proceedings annexing territory to municipal corporation. 18 ALR2d 1255.
    [2] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 55.
    [3] 73 Am Jur 2d, Statutes §§ 249, 250, 257.
    [5] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 66, 67.

      Reversed and remanded with instructions.
    Mackenzie, J., concurred separately. She states that the phrase "municipal boundary adjustment” includes the process of consolidation and incorporation as well as annexation. The total affected area is considered in both consolidation and incorporation; therefore, since the total affected area is considered for the two other forms of "municipal boundary adjustment”, the interests of consistency suggest that "territory” be interpreted to be the combined area of the city and township where the "municipal boundary adjustment” involves annexation. She concurs in holding that the annexation commission containing two Midland County members was properly constituted.
    Opinion op the Court
    1. Municipal Corporations — Annexation — Boundaries — State Boundary Commission — Voting Members — Statutes.
    The district to be affected by a petition for annexation includes the whole of each city, village or township from which territory is to be taken or to which territory is to be annexed; therefore, where a statute provides that "if a municipal boundary adjustment involves territory lying in more than one county, the county members of the county in which the greater part of the territory to be included within the adjusted boundaries lies shall serve on and be voting members of the [boundary] commission” the plain meaning is that county members who sit on the State Boundary Commission to decide the question of annexation shall be chosen from that county which has the larger proportion of the total territory encompassed by the proposed boundaries (MCL 123.1005; MSA 5.2242[5]).
    2. Municipal Corporations — Boundaries — Vested Rights — Annexation.
    The Legislature is free to change city, village and township boundaries at will; no governmental authority or person has any legal right in the boundaries of such governmental units.

      Concurrence by Mackenzie, J.
    3. Statutes — Construction — Consideration op All Parts — General Plan and Purpose.

      Judicial interpretation of a statute requires that all parts of a speciñc statutory provision, as well as the entire act, should be considered to determine the general plan and purpose of the provision involved.

    4. Municipal Corporations — Annexation — Boundary Adjustments — City — Township — Voting Privileges — Construction op Statutes — Statutes.

      The term "territory” in the statute providing that two members of the State Boundary Commission should be from the county in which a municipal boundary adjustment is being considered should be interpreted to include the combined area of an annexing city and a township to be annexed; therefore', for the purpose of designating commissioners to vote on possible annexation, the commissioners should come from the county containing the greater part of the combined city ahd township area where the municipal adjustment involves a city annexing a portion of a township located in a neighboring county (MCL 123.1005; MSA 5.2242[5j).

    5. Municipal Corporations — Annexation.

      The territory involved in an annexation includes the area of the territory to be annexed as well as the territory created as a result of the annexation.

      Higgs, Higgs & Darbee, P.C. (by Michael A. Makulski), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone, Craig Atchinson and Chester W. Lewis, Assistants Attorney General, for the State Boundary Commission.

      Darrell W. Foell, for John A. Rapanos.

      John J. Rae, for the City of Midland,

      Before: M. J. Kelly, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   M. F. Cavanagh, J.

We agree with the conclusion reached by Judge Mackenzie in her concurring opinion and refer the reader to her opinion for a thorough representation of the facts. We feel it necessary, however, to employ an approach different from that of Judge Mackenzie in reaching that conclusion.

As recognized by Judge Mackenzie, the parties’ differences stem from their conflicting interpretations of the meaning of the word "territory” as it is used in the sixth sentence of § 5 of the state boundary commission act. MCL 123.1001 et seq.; MSA 5.2242(1) et seq. We, too, note that the term is arguably ambiguous if the reader contemplates that it could refer to the end result, i.e., the city seeking the annexation combined with the land area to be annexed, or, simply, the land area to be annexed. However, if the Legislature intended the latter interpretation, it could have simply added to the word, "territory”, the single word "sought”, or the phrase, "sought to be annexed”, or some such similar effective description. We are persuaded that to adopt the construction urged by the plaintiff township would be to adopt an overly narrow and constrained meaning of the term, especially in light of other statutory provisions.

Section 11a of the boundary commission act vests jurisdiction in the commission "over petitions or resolutions for annexation as provided in section 9 of Act No. 279 of the Public Acts of 1909, as amended”. MCL 123.1011a; MSA 5.2242(lla). Section 9 directs, in its second sentence, that, "The district to be affected by every such proposed incorporation, consolidation or change of boundaries shall be deemed to include the whole of each city, village or township from which territory is to be taken or to which territory is to be annexed”. MCL 117.9(1); MSA 5.2088(1). Section 9 then describes: (1) how the commission shall process annexation requests according to the provisions of the boundary commission act, MCL 117.9(2); MSA 5.2088(2); (2) how approval of the annexation of an area where more than 100 persons reside is subject to a referendum under specified conditions, MCL 117.9(5); MSA 5.2088(5); and (3), that annexation of territory from a township to a home rule city must follow the provisions of § 9 so long as 1968 PA 191 is in effect. MCL 117.9(11); MSA 5.2088(11). Midland is a home rule city.

The sixth sentence of § 5 of the boundary commission act states that, "If a municipal boundary adjustment involves territory lying in more than one county, the county members of the county in which the greater part of the territory to be included within the adjusted boundaries lies shall serve on and be voting members of the commission”. MCL 123.1005; MSA 5.2242(5). Two definitions included in that act are pertinent to the foregoing sentence, viz., " 'adjusted boundaries’ means the total area that would be encompassed by a municipality if a municipality boundary adjustment is approved as proposed in a petition or resolution”, MCL 123.1001(a); MSA 5.2242(l)(a) and " 'municipal boundary adjustment’ means * * * the annexation of territory to a city where the commission has jurisdiction over annexation proceedings”. MCL 123.1001(e); MSA 5.2242(l)(e). When these definitions are substituted into the sixth sentence and one recalls the directive that the "affected districts” include the whole of each city or township being considered, the ambiguity which plaintiff propounds loses credence. The meaning of the contested sentence is plain, i.e., the county members who sit on the commission shall be chosen from that county which has the larger proportion of the total territory encompassed by the proposed boundaries. We agree with the importance of Judge Mackenzie’s observation that neither county will lose any territory as a result of the annexation proceedings. Romeo Homes, Inc v Commissioner of Revenue, 361 Mich 128, 135; 105 NW2d 186 (1960). A case that concerned a nearly identical factual context and that relied upon similar language in an earlier version of the home rule cities act interpreted the statute in an analogous manner. Warren Products, Inc v Northville, 356 Mich 481; 96 NW2d 764 (1959).

The reasoning of the trial judge in setting aside the commission’s order is appealing, but superfluous, since "The Legislature is free to change city, village and township boundaries at will * * * [and] no governmental authority or person has any legal right in the boundaries of a city, village or township”. Midland Twp v State Boundary Comm, 401 Mich 641, 664-674; 259 NW2d 326 (1977), lv den 435 US 1004; 98 S Ct 1873; 56 L Ed 2d 386 (1978). Rather than attempting to discern the logic behind the legislation here involved, "* * * the judiciary ought to be especially circumspect in reviewing commission rulings and determinations”. Midland Township, supra, p 674.

Therefore, the decision of the lower court is reversed and the cause remanded for determination of the remaining issue. No costs, a public question being involved.

M. J. Kelly, P.J., concurred.

Mackenzie, J.

(concurring). The defendants appeal as of right from a decision of the Bay County Circuit Court, which reviewed the final decision of the State Boundary Commission on a petition to annex territory to the City of Midland, Michigan.

On August 28, 1972, a petition was filed, hy one John Rapanos, requesting the annexation of certain territory in Williams Township to the City of Midland. The Township of Williams is located in Bay County. The City of Midland is located in both Bay and Midland Counties, the greater portion being situated in Midland County.

The State Boundary Commission is responsible for processing petitions for annexation. MCL 123.1006; MSA 5.2242(6). The commission is composed of three members appointed by the Governor, MCL 123.1002; MSA 5.2242(2), and two members from the county in which the municipal boundary adjustment is being considered, MCL 123.1005; MSA 5.2242(5).

In December, 1972, the executive secretary of the State Boundary Commission determined that the petition was properly filed, and appointed two Midland County members to the panel for consideration of the annexation petition. The State Boundary Commission approved the annexation of certain Williams Township property and issued its Summary of Proceedings, Findings of Fact, and Order on August 14, 1973. The decision of the commission was appealed to the Bay County Circuit Court on October 9, 1973. By stipulation of the parties, the appeal was held in abeyance pending the decision in Midland Twp v State Boundary Comm, 401 Mich 641; 259 NW2d 326 (1977). That decision disposed of two issues on appeal in the instant case, leaving two remaining issues before the circuit court. The first was whether the local members of the State Boundary Commission should have been appointed from Bay County or from Midland County. The court was further asked to consider whether the commission had used reasonable criteria in arriving at its order permitting annexation.

On March 27, 1978, the circuit court ordered that the decision of the State Boundary Commission be set aside on the grounds that the board members should have been appointed from Bay County and not Midland County. In light of this decision, the court did not reach the question of whether the commission used reasonable criteria in reaching its decision.

Section 5 of the act, MCL 123.1005; MSA 5.2242(5), allows for local representation in the approval of annexation petitions. The statute provides:

’’The presiding probate judge in each county shall appoint 2 persons residing in that county to serve on the commission during such time as the commission shall have under consideration municipal boundary adjustments for territory lying within his county, 1 of whom shall reside in a township and 1 within a city. If there is no city in a county at the time of the filing of a petition for a municipal boundary adjustment the presiding probate judge shall appoint 2 county members from the county at large. Within 30 days after notice from the commission that a municipal boundary adjustment is pending in the county and the office of 1 or more of the county members is vacant, the presiding probate judge shall make original appointments and any appointment to fill a vacancy. A county member shall serve for 3 years and until his successor is appointed and qualified. Notwithstanding the appointment and qualification of a successor a county member shall continue to serve until the conclusion of all boundary adjustment matters which were filed during his term or the filing of which gave rise to his appointment. If a municipal boundary adjustment involves territory lying in more than 1 county, the county members of the. county in which the greater part of the territory to be included within the adjusted boundaries lies shall serve on and be voting members of the commission. A county member shall receive per diem and expenses as authorized and paid by the county board of supervisors when serving on the commission on matters involving territory within his county. A county member shall qualify by taking and filing the constitutional oath of office.” (Emphasis supplied.)

The issue is whether the first or the sixth sentence is applicable to the instant case.

The circuit court determined the first sentence to be applicable by examining § 1 of the act, MCL 123.1001; MSA 5.2242(1), which contains various definitions. According to this section:

'■As used in this act: (a) 'Adjusted boundaries’ means the total area that would be encompassed by a municipality if a municipal boundary adjustment is approved as proposed in a petition or resolution, (b) 'Commission’ means the state boundary commission, (c) 'Secretary’ means the executive secretary of the commission, (d) 'Municipality’ means an incorporated city or village, (e) 'Municipal boundary adjustment’ means incorporation of a new city or village, consolidation of 2 or more cities, villages or townships as a new city, and the annexation of territory to a city where the commission has jurisdiction over annexation proceedings.”

Substituting the appropriate definitions into the first and sixth sentences of § 5, the court reached the following results:

"First sentence: 'The presiding probate judge in each county shall appoint two persons residing in that county to serve on the commission during such time as the commission shall have under consideration (the annexation of territory to a city) for territory lying within his county * * *’

"Sixth sentence: 'If (the annexation of territory to a city) involves territory lying in more than one county, the county members of the county in which the greater part of the territory to be included within the (new city boundary lines) lies shall serve on and be voting members of the commission.’ ”

The court found the word "territory” as used in sentence six, § 5 of the act to mean the land area to be annexed, being of the opinion that the defendant’s position that "territory” referred to both the city doing the annexing and the land area to be annexed:

"* * * would be tantamount to allowing any city in an adjacent county to grab off large chunks of unpopulated areas within a neighboring county without any representation of that county on the five-member panel hearing such annexation petitions. Under defendant’s theory, the City of Midland could seek annexation of any large industrial or commercial parcel in Bay County, as long as such parcel to be annexed had fewer than 100 residents and had a land area 'smaller’ than that encompassed by the annexing city. Each time that the city accomplished its annexation, its total area would be increased so that the next annexation attempt could be for an even larger, sparsely populated (less than 100 people) area.”

Thus, since the court noted that the territory to be annexed was exclusively located in Bay County, the court determined that two Bay County Boundary Commissioners should have sat on the five-member panel in accordance with the first sentence of § 5. Because the State Boundary Commission was improperly constituted, the court set aside the commission’s order.

I would disagree with the circuit court’s decision and would find that the commission, containing two Midland County members, was properly constituted.

I first note that § 5 is ambiguous, in that it is unclear whether the term "territory” in sentence six refers to both the city and the land to be annexed or merely the latter area. Statutory interpretation is appropriate, and, therefore, we must consider the intent of the Legislature. All parts of a specific provision should be considered and the entire act may be considered to determine the general plan and purpose of the section. Melia v Employment Security Comm, 346 Mich 544; 78 NW2d 273 (1956).

When the phrase "annexation of territory to a city” is inserted in the sixth sentence of § 5, the following result is achieved:

"If (the annexation of territory to a city) involves territory lying in more than one county, the county members of the county in which the greater part of the territory to be included within the (new city boundary lines) lies shall serve on and be voting members of the commission.” (Emphasis supplied.)

Although the combined language presents a strong argument for the contention that "territory” means only the area to be annexed, it is not conclusive. More cogent reasons exist to interpret the term otherwise.

According to § 1(e), the phrase "municipal boundary adjustment” includes the processes of consolidation and incorporation as well as annexation. If Williams Township were a city, and Midland and Williams were being consolidated into a new city, the involved "territory” would be considered as constituting both areas. There is no basis for a conclusion that only one of the two cities would be considered the involved "territory”. Thus, in such an event, the two commissioners would come from Midland County. A similar result would occur if Midland and Williams were two townships to be incorporated into one city. Since the total affected area is considered for the two other forms of "municipal boundary adjustment”, the interests of consistency suggest that "territory” be interpreted to be the combined area of the city and township when the "municipal boundary adjustment” involves annexation.

Further, I fail to perceive a sufficient reason for interpreting the involved "territory” of the sixth sentence in § 5, in a different manner when the "municipal boundary adjustment” involves a city annexing a township located in a neighboring county. The reason urged by Williams Township is that the Legislature intended to have county commissioners whose territory was to be affected sit on the commission. In this way, the township argues, the annexation petition would be presented to an unbiased panel. There is, however, no basis for the assumption that Bay County Commissioners would be more unbiased than Midland County Commissioners. It is important to keep in mind that Bay County is not losing any territory.

The State Boundary Commission’s decision that the territory affected by the annexation includes both the City of Midland and the land in Williams Township to be annexed is reinforced by the commission’s duty to apply the criteria set forth in § 9 of the act, MCL 123.1009; MSA 5.2242(9) when determining whether to approve a boundary adjustment. This section requires analysis of the general effect of the proposed action upon the entire community. The standards indicate that the territory involved in an annexation includes the area of territory to be annexed as well as the territory created as the result of the annexation.

I conclude that the term "territory” appearing in sentence six of § 5 refers to the combined area of the city conducting the annexation and the land to be annexed. This is clearly the case when there is either consolidation of two cities or incorporation of two townships into one city. I don’t perceive sufficient reasons for interpreting the phrase differently when annexation is involved.

I would reverse the circuit court’s decision, and remand for a determination of the remaining issue of whether the commission used reasonable criteria in reaching its decision.

       The petition was accompanied by the following description of the territory:
      "Commencing on the West line of Section 19, Township 14 North, Range 3 East, Williams Township, Bay County, Michigan, at a point 945.95 feet South of the Northwest corner of said Section 19; thence Southeasterly along the Southwesterly right-of-way line of M-20, US-10 Highway to its intersection with the East-West one quarter line of Section 19; thence Easterly along said East-West one quarter line to the East line of the West one half of the East one half of the Southwest one quarter of Section 19; thence South to the South line of Section 19; thence West along the South line of Section 19 a distance of 656.16 to its intersection with the West one eighth line of Section 30; thence South along the West one eighth line of Section 30 to East-West one quarter line of Section 30; thence West along said East-West one quarter line to the West line of Section 30; thence North along the West section line to the Southwest corner of Section 19; thence East along the South line of Section 19 a distance of 443 feet; thence North parallel to the West line of Section 19 to the East-West one quarter line of Section 19; thence West along said East-West one quarter line a distance of 443 feet to the West line of Section 19; thence North along said West section line to the point of beginning.”

       The following described property was ordered to be annexed:
      "Beginning at the West 1/4 post of Section 19, Township 14 North, Range 3 East; thence East along the East-West i/4 line of Section 19 a distance of 443 feet; thence South parallel to the west line of Section 19 to the South line of Section 19; thence East along the South line of Section 19 and the centerline of Fisher Road to a point 660 feet east of the South 1/4 post of Section 19; thence North parallel to the North-South 1/4 line of Section 19 to the centerline of Midland Road; thence Westerly along the centerline of Midland Road; thence Westerly along the centerline of Midland Road to its intersection with the Southwesterly right-of-way line (extended) of US-10 and M-20; thence Northwesterly along said right-of-way line to the west line of Section 19; thence South along the west line of Section 19 to the point of beginning.”

       The two contentions disposed of by the Midland Township decision were: 1) that the act creating the State Boundary Commission is unconstitutional and, 2) that the commission had no authority to include land in the annexation order that had not initially been the subject of the annexation petition.

       The court determined that the sixth sentence applied only if the territory to be annexed lay in more than one county, a situation not present in the instant case.

       MSA 5.2242(9) states:
      "Criteria to be considered by the commission in arriving at a determination shall be:
      (a) Population; population density; land area and land uses; assessed valuation; topography, natural boundaries and drainage basins; the past and probable future urban growth, including population increase and business, commercial and industrial development in the area. Comparative data for the incorporating municipality, and the remaining portion of the unit from which the area will be detached shall be considered.
      (b) Need for organized community services; the present cost and adequacy of governmental services in the area to be incorporated; the probable future needs for services; the practicability of supplying such services in the area to be incorporated; the probable effect of the proposed incorporation and of alternative courses of action on the cost and adequacy of services in the area to be incorporated and on the remaining portion of the unit from which the area will be detached; the probable increase in taxes in the area to be incorporated in relation to the benefits expected to accrue from incorporation; and the .financial ability of 'the incorporating municipality to maintain urban type services in the area.
      (c) The general effect upon the entire community of the proposed .action; and the relationship of the proposed action to any established pity, village, township, county or regional land use plan. (MCL 123.1009.)”