author: V. J. Brennan, J.

text:
    EYDE v STATE OF MICHIGAN
    Docket No. 30438.
    Submitted November 7, 1977, at Lansing.
    Decided April 17, 1978.
    Leave to appeal applied for.
    Complaint by Patrick Eyde and Michael Eyde against the State of Michigan and The Charter Township of Delta for an injunction to prevent the construction of a sewer across the plaintiffs’ land. An injunction was granted by the Ingham County Circuit Court, Thomas L. Brown, J., permanently enjoining the defendants from using an easement across plaintiffs’ land obtained in a prior condemnation proceeding providing that the plaintiffs would present an alternate route for the easement and that a master would be appointed if defendants were to use a certain portion of the existing easement. That judgment was appealed, reversed by the Court of Appeals (Docket No. 20210, memorandum opinion of July 26, 1974), reinstated by the Supreme Court, 393 Mich 453 (1975), and remanded to the circuit court. Upon remand the parties stipulated to an alternate route for the easement, and an amended judgment was entered, with the appointment of masters to manage the project. Construction of the sewer was completed, and at a later hearing the court adopted one of two plans submitted for restoration of the property. The defendants appeal by leave granted, contending that the trial court improperly expanded the Supreme Court directive in its remand by extending the jurisdiction of the masters to cover the entire project and by improperly adding reforestation requirements, and that the trial court improperly exercised its discretion by ordering restoration of the easement so as to prevent vehicular access to the sewer for repair and maintenance. Held:

    1. The jurisdiction of the masters was not improperly extended to cover the alternative easement route because the order of the Supreme Court provided general authorization for appointment of a master regardless of the location of any restoration project.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 744, 746, 747.

       20 Am Jur 2d, Courts §§ 4, 88, 91, 111 et seq.

       5 Am Jur 2d, Appeal and Error § 703.

       25 Am Jur 2d, Easements § 86.
    Correlative rights of dominant and servient owners in right of way for pipeline. 28 ALR2d 626.

      2. Reforestation was properly ordered to adequately resolve environmental questions raised.
    3. The trial court’s restoration order regarding access to the sewer was not an improper exercise of discretion.
    Affirmed.
    1. Appeal and Error — Remand—Instructions op Supreme Court.
    The Court of Appeals is bound by instructions expressed by the Supreme Court in a case which the Supreme Court remands to the trial court and where the trial court’s decision on remand is appealed.
    2. Courts — Supreme Court — Trial Court — Appeal and Error — Order op Court — Implementation of Order — Easements—Appointment op Master.
    A trial court did not erroneously expand the jurisdiction of a master in its implementation of an order of the Supreme Court regarding the granting of a sewer easement and the appointment of a master to oversee any necessary restoration of the property where the location of the easement was changed by stipulation of the parties, and where the Supreme Court order provided general authorization for appointment of a master to oversee any restoration plans anywhere proposed.
    3. Courts — Order op Court — Implementation op Order — Restoration op Property.
    A trial court properly included reforestation of a plaintiffs property after construction of a sewer across the land as a part of a restoration plan in which the court was implementing an earlier order calling for restoration of the land, even though the earlier order did not expressly mention trees and shrubs, where restoration of the kind ordered was necessary to adequately resolve the environmental questions raised in the case.
    4. Appeal and Error — Equity—De Novo Review — Environmental Protection Act — Statutes.
    The Court of Appeals reviews de novo cases brought under the Michigan Environmental Protection Act; however, as a general rule in equity cases, great weight is accorded to the findings of the trial judge (MCLA 691.1201 et seq.; MSA 14.528[201] et seq.).

      5. Easements — Pipeunes—Courts—Orders of Courts — Access— Maintenance and Repair.
    Generally, an owner of a pipeline easement is entitled to reasonable' access to the land for maintenance and repair purposes; a trial court’s order directing reforestation of an easement, after construction of a sewer, in a manner which prevents vehicular travel across the easement is not unreasonable on its face where the court specified that the owners of the easement can seek a court order at any time that access to the sewer for maintenance becomes necessary.

      Sinas, Dramis, Brake, Turner, Boughton, McIntyre & Reisig, P. C., for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Charles D. Hackney, Assistant Attorney General, for defendant State of Michigan.

      Abood, Abood & Abood, P. C. (by William E. Rheaume) for defendant Charter Township of Delta.
    Before: Quinn, P. J., and V. J. Brennan and C. L. Bosman, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   V. J. Brennan, J.

Defendants State of Michigan and Charter Township of Delta appeal from the interlocutory order of Ingham Circuit Judge Thomas L. Brown on September 21, 1976, requiring them to proceed with reforestation of plaintiff’s property pursuant to an original sewage facility condemnation proceeding begun in 1970. Defendants appeal by leave granted November 1, 1976, including provision for immediate consideration and stay of trial proceedings. A brief summary of the lengthy history of this case is necessary to clarify our resolution of this appeal.

On February 11, 1970, Delta Township filed a complaint in Eaton County Circuit Court to condemn an easement against the Eyde property and that of Pearl Myers Horst. The easement was necessary to install a 30-inch pipe to provide sewage disposal facilities for the state’s secondary ^office complex located west of the City of Lansing in Windsor Township of Eaton County. A further purpose was to use the Carrier Creek interceptor extension as a principal sewage disposal system for future development of Delta Township.

A condemnation jury awarded the property owners $6,000. On appeal, we affirmed with Judge Targonski dissenting. Delta Township v Eyde, 40 Mich App 485; 198 NW2d 918 (1972). The Michigan Supreme Court reversed us and adopted the dissenting view that the easement was limited to 50 feet, not 50 feet "and sufficient area for construction”. Delta Township v Eyde, 389 Mich 549, 555-556; 208 NW2d 168 (1973). However, being persuaded that the $6,000 was intended to compensate for only the 50-foot easement, the Court found no need for a new trial. The cause was thus remanded to the circuit court for amendment of the judgment in conformity with the jury award by deleting the words "and sufficient area for construction”.

On December 13, 1973, the present action was started as an equity suit in Ingham County Circuit Court, seeking to enjoin the construction of the sewer as violative of the Environmental Protection Act of 1970, effective October 1, 1970. MCLA 691.1201 et seq; MSA 14.528 (201) et seq.

On April 30, 1974, Ingham County Circuit Judge Thomas L. Brown entered a final order (judgment) pursuant to an order of the Supreme Court on April 2, 1974, issued in response to a motion by defendants, in holding that the matters presented were not the same as presented in the condemnation action and so not precluded by the principle of res judicata. Judge Brown also found that the sewer "threatened ecological damage to the Carrier Creek as it crosses the property owned by plaintiffs Eyde, [and] additional damage down stream in the Carrier Creek to the Grand River into Lake Michigan”. The judgment permanently enjoined defendant township and the State of Michigan from using the easement acquired in the condemnation action and provided that plaintiffs Eyde would furnish a legally described alternate 50-foot easement for consideration. Were plaintiff unable to furnish such alternate easement, then a second legally described alternative would be necessary. Provision was included for appointment of a master were defendants to use "that portion of the present easement across Plaintiffs’ land from manhole 12 North”.

On appeal, we reversed Judge Brown’s ruling by opinion of this Court dated July 26, 1974 (memorandum opinion, Docket No. 20210). The Supreme Court reversed our decision in its order of January 21, 1975. Eyde v State of Michigan, 393 Mich 453; 225 NW2d 1 (1975). The Court there reinstated the order of the Ingham County Circuit Court, giving various reasons for its decision.

The questions now before us involve matters which have occurred upon remand from that order to the circuit court. On August 8, 1975, the parties stipulated to an alternative route for the easement, referred to as Alternative C. An amended judgment was entered that same day incorporating this alternative easement route. John Cushing and Ray White were appointed as masters to manage the project. Construction of the sewer then commenced but was delayed because of several legal challenges by Pearl Mowrer, formerly Pearl Myers Horst, both in state and Federal court. On August 29, 1975, plaintiffs obtained a temporary restraining order on the theory that the masters had not yet submitted reports to the court for approval. At the show cause hearing, the question arose whether the masters’ authority extended to the entirety of Alternative C. No clear answer emerged at this hearing.

The temporary restraining order was dissolved on September 8, 1975. At a meeting of the masters on October 7, 1975, the court did rule that the masters’ jurisdiction included the entire project. Though disputed on appeal, the matter of planting trees equal in number to those removed and whether space would be left for access by vehicles for inspection, maintenance and repair purposes emerged for consideration.

Despite the constant litigation, construction of the sewer was completed on January 12, 1976. At a hearing on September 7, 1976, the court heard testimony concerning two restoration plans. After receiving testimony, the plan submitted by Dr. Stevens was adopted. This plan proposed that the land be restored as closely as possible to its preconstruction condition. Under this plan, access to the easement by vehicles was not discussed. The estimated cost of the plan was $67,000. Dr. Stevens was substituted for Ray White as a master for the project. The court retained jurisdiction.

Delta Township moved for rehearing or clarification due to the failure of the plan to provide for vehicular access to the easement. On September 28, 1976, an evidentiary hearing was held and evidence of the need for access and changes required to obtain such access was presented. The court denied the motion, noting that in the future the township could gain access to the sewer for maintenance by seeking a court order providing for the removal of obstacles to any necessary equipment. Defendants appeal from the order of September 21, 1976, adopting the Stevens recommendation for restoration.

On appeal, defendants raise two principal allegations of error.

Defendants first argue that the trial court on remand improperly expanded the directive of the Michigan Supreme Court by extending the jurisdiction of the masters to cover the entire project and by improperly adding reforestation requirements.

The Supreme Court expressly reinstated the trial court’s order of April 30, 1974. We are bound by the instructions expressed there. Theisen v City of Dearborn, 48 Mich App 571, 573; 210 NW2d 777 (1973).

The trial court’s order arguably provided for the appointment of a master concerning both (1) environmental problems incident to actual construction of any sewer involving "that portion of the present easement across Plaintiffs’ land from manhole 12 North” and (2) any problems encountered generally in restoring the property to its original condition. The new easement route, termed Alternate C, to which the parties stipulated after remand from the Supreme Court on August 8, 1975, contained similar provision for appointment of a master as originally provided in the order of April 30, 1974. The amended judgment of August 8, 1975, incorporated such provision in the following terms:

"NOW THEREFORE IT IS ORDERED that Defendant, The Charter Township of Delta, be and is hereby granted an easement to the following described property for the purposes of constructing the Carrier Creek Interceptor Extension, which construction shall be accomplished under the terms and conditions of the previous Judgment entered in this Court on April 30, 1974, including but not limited to the appointment of a master to oversee the construction of the sewer along Alternate C, under the same circumstances as contained within the Judgment of April 30,1974 * * *

We hold that the trial court did not err in its implementation of the Supreme Court order reinstating the trial court’s own judgment of April 30, 1974, when the court extended the provision for a master concerning restoration to the new Alternate C easement route. Ample evidence, including the trial court’s own interpretation of its previous order and the stipulation of the parties, supports the interpretation that the order of April 30, 1974, provided general authorization for appointing a master to oversee any necessary restoration plans anywhere proposed, thus including the later Alternate C easement route adopted by the parties. We find this interpretation renders the trial court order of April 30, 1975, the Supreme Court order of January 21, 1975, and subsequent trial court orders more reasonable, effective and conclusive. Hendrie v Lowmaster, 152 F2d 83, 85 (CA 6, 1945).

We also find that the order of April 30, 1974, authorized restoration measures. The language of the order unequivocally calls for restoration of the land, and the subsequent interpretations by the court of its own language simply reinforce this conclusion. Although the order of April 30, 1974, did not mention trees and shrubs by name, we have no reason to believe the Supreme Court would have acted any differently in remanding the case had such a reference been expressly included. Certainly, the removal of trees constitutes obstruction of natural resources under MCLA 691.1202; MSA 14.528(202) and MCLA 691.1203; MSA 14.528(203). If we were to consider that the Supreme Court limited its reinstatement of the trial judge’s order to water pollution measures only, we would be blind to the environmentally sensitive thrust of that high court order and inevitable implication that restoration of the total environment would be necessary to answer problems in this case arising under the act. Restoration of the kind ordered by the court pursuant to the Stevens plan is necessary to adequately resolve the environmental questions raised by plaintiff and addressed by the trial court’s commendable supervision incident to restoring plaintiff’s property.

Defendants contend next that the trial court improperly exercised its discretion by ordering restoration of the easement route so as to prevent vehicular access to the sewer for repair and maintenance purposes.

Note can be made here that we review cases brought under the Michigan Environmental Protection Act de novo. Ray v Mason County Drain Commissioner, 393 Mich 294, 303; 224 NW2d 883 (1975). However, as a general rule in equity cases, we accord great weight to the findings of the trial judge. Kropf v Sterling Heights, 391 Mich 139, 164; 215 NW2d 179 (1974) (concurring opinion). We find the trial judge in this case correctly followed statutory procedures when he determined that the intended use of defendant’s easement would destroy natural resources of the state and that a feasible alternative permitting environmentally safe construction existed. See Ray v Mason County Drain Commissioner, supra.

We do not find the Stevens’ plan adopted by the trial court violative of the Supreme Court order issued January 21, 1975. The Supreme Court merely observed that the prejudice to defendants in cost terms would be minimal in their opinion under the order as constituted by the trial court on April 30, 1974. We do not find the statement of opinion by the Supreme Court to be a limiting mandate on the possible options open to the trial court on remand. We do not find that this vague statement by the Court can serve to reverse the careful planning incident to the restoration of plaintiff’s property accomplished since then. We do not find the figures incident to the Stevens’ plan unreasonable or so prejudicial as to constitute clear error. We affirm these costs.

We also find the trial judge ruled correctly in response to defendant’s contention that vehicular access to the manholes along the sewer is necessary for repair and maintenance purposes. As a general rule, an owner of a pipeline easement is entitled to reasonable access to the land for maintenance and repair purposes. Anno., Correlative rights of dominant and servient owners in right of way for pipeline, 28 ALR2d 626, 630. We find on the record the trial court specified to defendants that were access to the sewer for maintenance purposes necessary defendants might seek a court order to that effect. The court observed that removal of any obstacles in proper maintenance or repair might be sought at that time. Though a more flexible response to this problem would have been both desirable and permissible under the original order of April 30, 1974, access was not precluded altogether. We do not find the court’s response unreasonable on its face and find no grounds for reversal or remand.

Having carefully reviewed defendants’ arguments and finding none persuasive, we sustain the trial court’s order requiring the parties to proceed with restoration. This Court’s stay order is hereby vacated and set aside. We retain no further jurisdiction.

Affirmed.

Quinn, P. J., did not participate.

       "5. If Defendants use that portion of the present easement across Plaintiffs’ land from manhole 12 North, then a master will be appointed by the Court to view the premises from manhole 12 thence North prior to construction and determine what protective steps may be taken to conserve the environment.”

       "1. The overriding need to achieve finality. This matter, which has been pending since 1970, should be brought to an immediate, conclusive determination. Litigation has caused delays in construction which have severely taxed the financial resources of this state and neighboring property owners. To dismiss plaintiffs’ suit could only cause further delay since other persons, not a party to the condemnation proceeding, have the right under the EPA to seek an injunction against the drain project as presently planned. Res judicata is designed to insure finality of litigation. In this case finality can be better achieved by not dismissing plaintiffs’ action.

        "2. The prejudice, if any, to the defendants is minimal. The defendants will have an easement accomplishing the same objective as the original one and the trial court opined 'it is no more costly’.
      "3. This action raises environmental issues of great significance which are of interest and concern to many. The impact on the environment resulting from the construction of the sewer across plaintiffs’ property as presently planned extends well beyond the boundaries of plaintiffs’ property. The trial judge found that the project would pollute, impair and destroy natural resources reaching from the lower Carrier Creek to the Grand River and into Lake Michigan.
      "4. At the time of trial the EPA had only recently become law. It is not surprising that the plaintiffs, lacking an understanding that they might raise an EPA issue in a condemnation proceeding, did not do so.
      "Our holding today is restricted to the unique facts of this case.” Eyde v State of Michigan, supra at 455-456.

       "Beginning on the North-South 1/4 line of Section 22 at a point 410 feet South of the Center of Section 22 and running thence S 62° 09' 40" E 95 feet, thence N 68° 11' 20" E 118.5 feet, then N 88° 09' 40" E 102.7 feet, thence S 59° 04' E 129.0 feet, thence S 51° 41' 20" E 89.25 feet, thence S 26° 41' 40" E 117.7 feet, thence S 7° 39' 40" W 110.3 feet, thence S 28° 19' 20" W 457.65 feet, thence S 33° 02' W 226.75 feet, thence S 16° 38' 40" E 178.5 feet, thence S 26° 59' 20" E 269.0 feet to a point 350 feet East of the North-South 1/4 line, thence South parallel to said North-South 1/4 line 887.6 feet, more or less to the South line of Section 22 and a point of ending.” Stipulation for Amended Judgment, p 3.

       The Supreme Court noted several specific reasons for reversing this Court and reinstating the trial court order of April 30, 1974. See note 2, supra.

       "It is hereby STIPULATED AND AGREED that the aforementioned legal description be ordered by this Court to be the easement within which the Carrier Creek Interceptor Extension is to be constructed in accordance with the Judgment of the Ingham County Circuit Court dated April 30, 1974; that all the other terms and conditions of the Judgment of April 30, 1974, and continued herein, including but not limited to the fact that a master will need to be appointed by the Court.” Stipulation for Amended Judgment, p 3.

       Defendants’ argument that plaintiffs would be compensated twice is without merit. Plaintiffs were given $6,000 for an easement which is defined as "a right which one person has to use the land of another for a specific purpose” St Cecilia Society v Universal Car & Service Co, 213 Mich 569, 576-577; 182 NW 161 (1921) (emphasis added). The money paid out in the condemnation proceeding was for the use of the land, not for the trees themselves. Moreover, the Environmental Protection Act action is one essentially for the benefit for the state and its inhabitants. Although the presence of the trees upon the easements may eventually inure to the benefit of plaintiff, such benefit should not be construed as compensation of any sort.


source: Caselaw Access Project

author: D. E. Holbrook, Jr., J. M. J. Kelly, J.

license: Public Domain

text:
    PEOPLE v WELLS
    Docket No. 30547.
    Submitted November 1, 1977, at Detroit.
    Decided April 17, 1978.
    Richard L. Wells was convicted of criminal sexual conduct in the second degree, Wayne County Circuit Court, Roman S. Gribbs, J. Defendant appeals. Held:

    Questions by a prosecutor, put to a complaining witness, which attempted to convey to the jury that the complainant was more worthy of belief than the defendant because the complainant attended church result in reversible error.
    Reversed and remanded.
    M. J. Kelly, J., dissented:
    Such questions by the prosecutor did not result in manifest injustice to the defendant and, in the absence of any objection by the defendant, his conviction should be affirmed.
    Opinion of the Court
    1. Witnesses — Criminal Law — Complainant—Religious Beliefs— Church Attendance — Statutes.
    Questioning by a prosecutor of a complaining witness which elicited testimony to the effect that because she attended church she knew what it was to take an oath and that her testimony was worthy of belief because she respected that oath constituted an unauthorized inquiry into the complainant’s religious beliefs and was a direct violation of the statute which prohibits questioning a witness in relation to her opinions on religion, either before or after she is sworn (MCLA 600.1436; MSA 27A.1436).
    2. Witnesses — Criminal Law — Complainant—Religious Beliefs—
    Credibility — Church Attendance — Appeal and Error. Questions put to a complaining witness whereby it appears that the prosecutor was attempting to convey to the jury that the complainant (1) was more worthy of belief than the defendant because the complainant attended church, (2) knew what it was to take an oath and (3) respected that oath because of the church attendance were unwarranted, prejudicial and constituted reversible error where the crucial issue was that of the credibility of the complainant and the defendant; the defendant’s failure to object to such questions does not save the error.

      References for Points in Headnotes
    [1, 2, 3] 81 Am Jur 2d, Witness §§ 87, 533.
    Propriety and prejudicial effect of impeaching witness by reference to religious belief or lack of it. 76 ALR3d 539.

       81 Am Jur 2d, Witness §§ 87, 484, 533.

       5 Am Jur 2d, Appeal and Error § 549.

      Dissent by M. J. Kelly, J.
    3. Witnesses — Criminal Law — Complainant—Religious Beliefs— Oath — Statutes.

      A prosecutor’s questioning of a complaining witness which elicited testimony that because the complainant attended church she knew what it was to take an oath and that her testimony was worthy of belief because she respected that oath was not a violation of the statute which prohibits questioning a witness as to her religious belief and did not result in manifest injustice to the defendant where the defendant had a fair trial under all the circumstances (MCLA 600.1436; MSA 27A.1436).

    4. Appeal and Error — Criminal Law — Failure to Object — Miscarriage of Justice — Statutes.

      Reversal on an error which was not objected to at trial is appropriate only where it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice (MCLA 769.26; MSA 28.1096).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Craig L. John, Assistant Prosecuting Attorney, for the people.

      Lawrence Baron, Assistant State Appellate Defender, for defendant on appeal.
    Before: Beasley, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   D. E. Holbrook, Jr., J.

Defendant was tried by jury and convicted of criminal sexual conduct in the second degree, MCLA 750.520c; MSA 28.788(3). Subsequently sentenced to a prison term of not less than 3 nor more than 15 years, defendant appeals as of right.

Upon trial defendant interposed a consent defense. Review of the trial testimony indicates that there existed a vast disparity between the testimony of the defendant and that of the complainant. It is readily apparent that the verdict of the jury hinged greatly upon whose testimony to believe thereby relegating the crucial issue to that of credibility.

During direct examination of the complainant the prosecutor asked and the complainant answered as follows:

"Q Do you go to church, by the way?
"A Yes.
"Q What church?
"A Christ The Good Shepherd.
"Q Would it be fair to say, then, that you know what it is to take an oath?
"A Yes.
"Q Do you respect that oath?
"A Yes.”

By virtue of such testimony, in response to prosecutorial questioning, the complainant in effect testified that because she attended the "Christ The Good Shepherd” church she knew what it was to take an oath and that her testimony was worthy of belief because she respected that oath. Such questioning by the prosecutor, in our opinion, constitutes an unauthorized inquiry into complainant’s religious beliefs, which, while not identical, is sufficiently similar to that prohibited in People v Hall, 391 Mich 175; 215 NW2d 166 (1974), People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977), and People v Poteat, 74 Mich App 598; 255 NW2d 1 (1977). Such questions are also in direct violation of MCLA 600.1436; MSA 27A.1436, the pertinent portion of which reads: "No witness may be questioned in relation to his opinions on religion, either before or after he is sworn.” We cannot help but find that the prosecutor, in asking the questions that he did, was attempting to unfairly bolster complainant’s credibility. We believe such conduct to be totally unwarranted and of the type of influence condemned in Hall, supra, Bouchee, supra, and Poteat, supra.

In essence it appears the prosecutor was attempting to convey to the jury that complainant was more worthy of belief than defendant because she attended church, knew what it was to take an oath and respected that oath because of her church attendance. Hence, implicit in the questions and answers was a conveyance to the jury that complainant had certain religious beliefs and because of such beliefs she knew what it was to tell the truth.

In a case such as this, when the crucial issue is that of credibility, such questions by a prosecutor put to a complaining witness are unwarranted, prejudicial and constitute reversible error. Nor does defendant’s failure to object to such questions save the error. People v Hall, supra.

Resolution of the foregoing being dispositive, appellant’s issue relating to a remand for resentencing becomes moot and resolution of his remaining allegation of error unnecessary.

Reversed and remanded.

Beasley, P. J., concurred.

M. J. Kelly, J.

(dissenting). This defendant was apprehended a little after four o’clock in the morning when he got stuck in the snow after abducting the complainant at rifle point at Metropolitan Airport. The police officers happened on the scene, the complainant jumped out of the car and the arrest of the defendant followed.

Defendant testified on his own behalf that he had had an argument with his fiancee earlier in the evening, began drinking beer and whiskey and by the time he encountered the complainant he considered himself intoxicated although he only wanted to talk to the complainant and see if something of a sexual nature might develop. He explained that the rifle was in the car for the purpose of rabbit hunting and that he only knocked on the window with the rifle to get the complainant’s attention, not to intimidate her. A reading of this record leaves no doubt that defendant’s testimony was fully incredible and that the complainant’s testimony was completely believable. To reverse this verdict and judgment on the ground that the witness was examined "in relation to [her] opinions on religion” in violation of the statute, MCLA 600.1436; MSA 27A.1436, is carrying the holding in People v Hall, 391 Mich 175; 215 NW2d 166 (1974), and People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977), to outright absurdity. It is time that the Supreme Court reviewed the havoc that People v Hall and its progeny has wrought and reinvigorated the rule that reversal on unobjected-to error is appropriate only where "it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice”. MCLA 769.26; MSA 28.1096.

Were this the court of last resort one would be tempted to reexamine the historical basis for the constitutional provision in question, Const 1963, art 1, § 18, and the legislative intent of the statute hereinabove referred to. Certainly the question of incompetency is obsolete beyond a doubt and the correlation to veracity in today’s profane (secular) America is dubious.

This trial was concluded on April 1, 1976. People v Hall, supra, was released shortly after its decisional date of February 27, 1974. What more comfortable feeling for a knowledgeable defense attorney than to allow a two or three line religious reference to put in the bank for later appellate review in case of conviction? The ebb and flow of a trial must not be measured by the existence of irregularities. There is no such thing as a perfect trial. The question is whether or not the defendant had a fair trial under all the circumstances, and I believe that he did here. I find no manifest injustice. I do not mean to be facetious but supposing the prosecutor had asked the witness where she attended high school and her reply was "Christ the Good Shepherd”.

I would affirm.


author: D. F. Walsh, J.

text:
    MEYERS v ROBB KALCZYNSKI v ROBB
    Docket Nos. 30601-04, 77-1715-18.
    Submitted February 7, 1978, at Lansing.
    Decided April 17, 1978.
    Leave to appeal applied for.
    Shirley Meyers brought actions as the guardian of Brian Kalczynski, Darwin Kalczynski and Steven Kalczynski against George Robb and his wife, and against Donald Gar lock, Lester Johnson, and Genesee Merchants Bank and Trust Company seeking damages for injuries sustained by the minors when a 55-gallon fuel drum exploded. Marilyn Kalczynski brought separate actions as next friend of Michael David Roy against the same defendants for damages for injuries sustained in the same explosion. The drum at issue was sold by defendant Garlock at an auction at which defendant Johnson was hired to serve as auctioneer and the defendant bank was hired to serve as clerk and cashier. The drum was purchased by defendant George Robb who removed it to his farm. The explosion occurred 2 years after the sale while the minor plaintiffs were playing with a cigarette lighter near the drum. Summary judgment of no liability was granted to defendants Johnson and Genesee Bank by the Livingston County Circuit Court, Paul R. Mahinske, J. Plaintiffs appeal contending that defendants Johnson and Genesee Bank were negligent in failing to inspect the drum prior to the sale; that the duty of care owed by an auctioneer to those purchasing at an auction was an issue for a jury to decide; and that the defendants were jointly liable for the damages under a theory of joint venture. Held:

    1. Summary judgment in negligence cases is proper where the court properly can say from the undisputed facts that there is no negligence issue for the jury.
    2. The risk to the public created by an auctioneer’s failure to inspect items to be sold at a farm auction is a reasonable risk for which an action in negligence may not be brought.

      References for Points in Headnotes

       57 Am Jur 2d, Negligence §§ 66, 376.

       57 Am Jur 2d, Negligence §§ 66 et seq., 261 et seq.

       57 Am Jur 2d, Negligence §§ 274, 287.

       57 Am Jur 2d, Negligence §§ 120,122.
    63 Am Jur 2d, Products Liability §§ 27,117,122.

       46 Am Jur 2d, Joint Venture § 7 et seq.

      3. A joint venture does not exist where there is no agreement to undertake the venture jointly, no provision for mutual sharing of profits or losses and no right on the part of one party to exercise control over the subject matter of the venture.
    Affirmed.
    1. Judgment — Negligence—Summary Judgment — Undisputed Facts — Issues—Jury.
    Summary judgment will almost always be inappropriate in negligence cases unless on the undisputed physical facts a judge could say that a directed verdict would be required because of the absence of a negligence issue for the jury.
    2. Negligence — Duty—Standard op Conduct.
    Duty in a negligence action may be defined as an obligation to conform to a particular standard of conduct toward another to which the law will give effect and recognition; essential to the determination of a duty is consideration of the reasonableness of the risk created by the defendant’s conduct, and in that sense it is a policy question indistinguishable from proximate cause.
    3. Negligence — Risk op Harm — Reasonableness—Jury—Utility op Conduct.
    The reasonableness of the risk of harm in a negligence action whether analyzed in terms of duty, proximate cause or specific standard of care turns on how the utility of the defendant's conduct is viewed in relation to the magnitude of the risk thereby created; in any case where there might be a reasonable difference of opinion regarding how that balance should be resolved, the question is for the jury, subject to instructions as to the legal conclusion to be drawn from its determination; however, a court may decide that the utility of the defendant’s conduct so overrides the degree of risk thereby created that the jury will not be permitted to impose liability upon the defendant for the resultant harm.
    4. Negligence — Auction Sales — Duty to Inspect — Reasonable Risks.
    The risk to the public created by an auctioneer’s failure to inspect the items to be sold at a farm auction is a reasonable risk for which an action in negligence may not be maintained.

      5. Negligence — Vendor and Purchaser — Auction Sales — Clerks and Cashiers — Duty to Inspect.
    The relationship of a bank, acting as no more than clerk and cashier at a farm auction, to the purchasers at the auction is insufficient to give rise to a duty on the bank’s part to inspect the sale items for the benefit of the purchasers.
    6. Joint Adventures — Evidence—Agreements—Profit Sharing— Right of Control.
    A seller of farm goods at an auction who hires a bank to act as clerk and cashier for the sale is not a joint venturer with the bank where there is no evidence of an agreement to undertake a joint venture, there is no provision for the mutual sharing of profits and losses, and there is no evidence that the bank has a right to exercise any control over the subject matter of the auction.
    7. Joint Adventures — Elements.
    The elements of a joint venture are: (a) an agreement indicating an intention to undertake a joint venture; (b) a joint undertaking of; (c) a single project for profit; (d) a sharing of profits as well as losses; (e) contribution of skills or property by the parties; (f) community interest and control over the subject matter of the enterprise.

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

      Denñeld, Timmer & Taylor, for defendant Lester Johnson.

      Hooper, Hathaway, Fichera, Price & Davis, for defendant Genesee Merchants Bank & Trust.
    Before: N. J. Kaufman, P. J., and D. E. Holbrook, Jr. and D. F. Walsh, JJ.
   D. F. Walsh, J.

This is a consolidated appeal from summary judgments entered in favor of defendants Lester Johnson and Genesee Merchants Bank & Trust [hereinafter Bank]. GCR 1963, 117.2(3).

Plaintiffs brought separate causes of action on behalf of four minors injured by the explosion of a 55-gallon fuel drum. Liability was predicated on negligence and breach of warranty. The pertinent facts follow.

Defendant Garlock contracted with defendant Johnson to have the latter serve as auctioneer at a sale of Garlock’s farm tools, machinery, hardware and furniture, for which Johnson would receive 7-1/2 percent of the sales price.

In turn Johnson hired defendant Bank to provide clerking and cashiering services at the auction for which Johnson paid, out of his share, 2 percent of the sales price. The Bank had no contract with Garlock and exercised no control over the auctioneer, the goods being sold or the prices asked.

On the day of the auction (and through prior advertisement) Johnson disclosed that Garlock was the owner of the goods to be auctioned. No representations regarding the quality or fitness of the drums in question were made by Johnson or by the Bank.

Defendant Robb purchased the drums at the auction and took them to his farm. More than 2 years later the four minors were playing with a cigarette lighter near one of the drums when it exploded, injuring them.

Plaintiffs’ challenge to the summary judgment granted to defendants Johnson and Bank requires us to answer the following questions:

(1) Was there a genuine issue as to a material fact concerning defendant Johnson’s liability?

(2) Did defendant Johnson, the auctioneer, have a duty to inspect the drums and to warn defendant Robb of their dangerous propensities?

(3) Did defendant Bank have a duty to inspect the drums and to warn defendant Robb of their dangerous propensities?

(4) Was the Bank engaged in a joint venture with Johnson and Garlock so as to render it jointly and severally liable for their actions?

The first question concerns the existence of material factual issues. The affidavits and depositions offered in support of defendant Johnson’s motion for summary judgment established that he was hired as an auctioneer, that he did not inspect the drums and that he made no representations as to their quality or fitness. In their argument plaintiffs relied on those same documents and offered no other proofs.

The trial court was correct in finding the above facts undisputed. Whether summary judgment was proper turns on the resolution of the next issue.

"In negligence cases, even though there may be no dispute as to the quantitative or physical facts, summary judgment will almost always be inappropriate * * * unless on the undisputed physical facts a judge would say that a directed verdict would be required [because of the absence of a] negligence issue for the jury.” Durant v Stahlin, 375 Mich 628, 653; 135 NW2d 392 (1965) (Opinion of Souris, J.).

In negligence cases a duty may be defined as an obligation to which the law will give effect and recognition to conform to a particular standard of conduct toward another. Farwell v Keaton, 396 Mich 281; 240 NW2d 217 (1976). Essential to the determination of the existence of a duty is consideration of the reasonableness of the risk created by the defendant’s conduct. In that sense, duty is a policy question indistinguishable from the question of proximate cause. Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977), see, Prosser, Torts (4th ed), § 37, pp 206-207.

The reasonableness of the risk of harm whether analyzed in terms of duty, proximate cause or specific standard of care turns on how the utility of the defendant’s conduct is viewed in relation to the magnitude of the risk thereby created. Moning v Alfono, supra. In any case where there might be a reasonable difference of opinion regarding how that balance should be resolved, the question is for the jury, subject to instructions as to the legal conclusion to be drawn from its determination. Moning v Alfono, supra, Bonin v Gralewicz, 378 Mich 521; 146 NW2d 647 (1966).

However, a court may decide that the utility of the defendant’s conduct so overrides the degree of risk thereby created that juries will not be permitted to impose liability upon the defendant for the resultant harm. Moning v Alfono, supra, cf. Holloway v Martin Oil Service, Inc, 79 Mich App 475; 262 NW2d 858 (1977).

In the instant case plaintiffs ask us to recognize an auctioneer’s obligation to inspect all goods sold at a farm auction. We must determine whether, given the social utility of such auctions, the magnitude of risk of the auctioneer not inspecting the items for sale justifies the burden imposed by such an obligation.

Farm auctions serve both public and private interests. To the seller they provide an efficient and inexpensive means of liquidating personal property; for a. modest fee he may avail himself of the experience and expertise of the auctioneer in arranging and executing the sale of such property. The public benefits from the existence of a marketplace where a panoply of items can be purchased at low prices, thus facilitating the exchange of goods to the benefit of all concerned. The social value of such an arrangement is self-evident.

In determining the magnitude of risk we must assess the number of people likely to be injured due to discoverable dangerous conditions present in items purchased at farm auctions. In this regard we note that the vast majority of such items are not inherently dangerous. Also pertinent is the general recognition that farm auctioneers have no special expertise concerning the goods being sold; their skill is in organizing and executing the auction itself. Consequently, rather than rely upon the auctioneer to assess the quality and fitness of the sale goods prospective purchasers themselves almost invariably inspect and make their own assessment. Furthermore, the awareness that used goods are being auctioned is likely to increase the buyer’s vigilance regarding the quality and fitness of the product.

Given the relatively small number of auctioned items containing discoverable dangerous conditions and the near certainty that the purchaser will inspect the goods before using them, we find an extremely low probability that an auctioneer’s failure to inspect sale items at a farm auction will result in bodily injury. Thus, the magnitude of risk is minimal.

On the other hand, the burden that would be imposed upon farm auctions by requiring inspection would be considerable. An auctioneer would have to become qualified to detect potentially dangerous conditions in a wide variety of goods or risk considerable liability each time he sold an item. Those who did not go out of business would certainly raise their rates to reflect the added expense and risk. Given the increasingly large awards in personal injury cases and the comparatively small amount of money realized by auctioneers for their labors we find that the detrimental impact upon farm auctions would be substantial.

In light of the foregoing considerations we conclude that all reasonable persons would agree that the risk created by an auctioneer’s failure to inspect the items to be sold at a farm auction is a reasonable risk. Therefore, defendant’s liability may not be predicated upon his failure to inspect the drums in question. The summary judgment in favor of defendant Johnson is therefore affirmed. Moning v Alfono, supra; Prosser, Torts (4th ed), § 45, p 290.

In their argument on the third question plaintiffs ask that we impose upon the Bank the duty discussed in the immediately preceding pages. Having rejected that argument for the auctioneer, we see even less reason to impose that duty on the Bank, whose participation in the sale, of the goods was limited to collecting the purchase money. We think it clear that the relationship of the Bank, acting as no more than clerk and cashier, to the purchasers at the auction was insufficient to require the Bank to inspect the sale items. Moning v Alfono, supra.

In their final argument plaintiffs attempt to attach liability to the Bank on the theory that it was a joint venturer in the auction with Garlock and Johnson. Their contention is devoid of merit.

The elements of a joint venture are:

(a) an agreement indicating an intention to undertake a joint venture;
(b) a joint undertaking of
(c) a single project for profit;
(d) a sharing of profits as well as losses;
(e) contribution of skills or property by the parties;
(f) community interest and control over the subject matter of the enterprise. Goodwin v S A Healy Co, 383 Mich 300; 174 NW2d 755 (1970), Hathaway v Porter Royalty Pool, Inc, 296 Mich 90; 295 NW 571 (1941).

In the instant case there was no evidence of an agreement between Garlock and the Bank, there was no provision for the mutual sharing of profits and losses and there was no evidence that the Bank exercised any control over the subject matter of the auction.

The summary judgment in favor of the Bank is affirmed.

Affirmed. Costs to appellees.

       In a strict analytical sense duty is no more than the judicial recognition of a relationship between two parties upon which liability for negligence may be premised. It does not include the nature of the obligation (the general standard of care and the specific standard of care), but only its existence. Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977). However, as the text of this opinion shall illustrate, consideration of the defendant’s conduct is necessary, as a practical matter, to deciding whether to impose a duty upon him.

       For a detailed statement of specific factors to be considered in this type of analysis see Moning v Alfono, supra; 2 Restatement Torts, 2d, §§ 292-293.

       More precisely the question is how many of those injuries are attributable to the auctioneer’s failure to inspect. However, given the nature of the factors considered in the text, that additional analytical step is of little significance to our risk assessment.

       This distinguishes farm auctions from those involving more specialized goods, e.g-, art auctions, in which a buyer may sometimes rely upon the auctioneer’s assessment of the quality and value of the product in deciding whether to purchase it.

       We do not consider such inspection as an intervening independent event that would exculpate an otherwise liable auctioneer. Rather, we attach importance to the likelihood of these inspections because they significantly reduce the probability that dangerous conditions undiscovered by the auctioneer will actually result in bodily injury.

       The complaint alleged that the defendant "knew or should have known” of the dangerous condition of the drums. The absence of an obligation to inspect disposes of the allegation that defendant Johnson "should have known” of the danger.
      Although the question of Johnson’s liability premised on his actual knowledge of the danger raises an issue distinct from his duty to inspect, it does not alter our decision in this case. According to the affidavit and depositions in the record, Johnson’s knowledge was limited to the fact that the drums were fuel drums, and he so advised the purchasers. His sworn deposition avers that he never inspected the drums, and plaintiffs could point to no contrary evidence indicating that he had any knowledge of the presence of fuel in the drums.

        By hypothesis, liability premised on actual knowledge requires proof of that element. The total absence of any such proof in this case would have justified a directed verdict for the defendant. Summary judgment was, therefore, proper. Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965) (opinion of Souris, J.).


author: D. E. Holbrook, Jr., P. J.

text:
    GOODWIN v BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF THE CITY OF KALAMAZOO
    Docket No. 30680.
    Submitted June 13, 1977, at Lansing.
    Decided April 17, 1978.
    Robert I. Goodwin, a tenured teacher, accepted an administrative position of Director of Buildings and Grounds with the Kalamazoo School District. Subsequently, plaintiff was advised that this position was being eliminated and he accepted a lower paying job as Supervisor of the Stockroom, reserving all rights to his previous position. A petition was filed with the State Tenure Commission alleging violation of the tenure act by discharging and/or demoting plaintiff and ignoring his rights under the tenure act. The tenure commission ruled that plaintiff had tenure but no right to a hearing in an economic layoff situation and that plaintiff’s petition was untimely filed because it was filed after the thirty-day statute of limitations period. Plaintiff appealed to Ingham Circuit Court, James T. Kallman, J., and that court held that plaintiff’s petition was timely filed because the statute of limitations was tolled until plaintiff was notified of his rights under the act. Defendant appeals. During the time the above case was being processed through circuit court, plaintiff filed another petition with the tenure commission when the Supervisor of the Stockroom position was being eliminated and he accepted a position as junior high school teacher with a full reservation of rights. This time the commission decided that only certified administrative positions could gain tenure and since the Director of Buildings and Grounds position did not require certification plaintiff did not have tenure and the commission had no jurisdiction to hear his appeal. With knowledge of this second decision, the Court of Appeals determined that it should consider the appeal before it in the light of the second commission ruling. Held:

      References for Points in Headnotes

       68 Am Jur 2d, Schools § 149 et seq.

       68 Am Jur 2d, Schools §§ 151, 155,158.

       68 Am Jur 2d, Schools §§ 37-55.

       68 Am Jur 2d, Schools §§ 158-160.

       68 Am Jur 2d, Schools §§ 149-160.

       No reference.

       68 Am Jur 2d, Schools §§ 151, 158-160.

      1. Plaintiff achieved tenure in the position of Director of Buildings and Grounds and the tenure commission had jurisdiction to hear his appeal.
    2. Whether a tenured teacher who accepts an administrative position is to be granted tenure is to be determined by contract between the teacher/administrator and the school board.
    3. The circuit court ruling that the thirty-day statute of limitations was tolled because plaintiff was not notified of his right to appeal under, the tenure act should be affirmed.
    4. The tenure commission is responsible for factual determinations as to whether a school board’s decision to reduce personnel is in good faith or an excuse for wrongful discharge or demotion when a teacher alleges such action is a mere subterfuge to deny a teacher his rights under the tenure act.
    Affirmed in part and remanded for factual findings.
    1. Schools and School Districts — Statutes—Teachers’ Tenure Act — Tenure—Right of Appeal.
    Those who have achieved tenure status in a school district are granted a statutory right to appeal a tenure related decision of a school board to the tenure commission (MCLA 38.121; MSA 15.2021).
    2. Schools and School Districts — Teachers’ Tenure Act — Tenured Teachers — Administrative Positions — School Boards— Administrative Tenure.
    The tenure statute authorizes individual school districts to determine which administrative positions should carry tenure and whether a tenured teacher who accepts an administrative position is to be granted tenure is to be determined by contract between the teacher/administrator and the school board; the statute should not be interpreted to dictate categories of administrative positions which carry tenure as a matter of law (MCLA 38.91; MSA 15.1991).
    3. Schools and School Districts — Teachers’ Tenure Act — Administrators — Administrative Tenure.
    A school district has some flexibility in establishing what types of administrative positions should carry tenure status; the statute does not dictate uniform tenure policies for administrators in all school districts and administrative tenure policies can be tailored to the size of the school district; each school board’s administrative tenure decisions are to be given effect through contract provisions between the board and administrators (MCLA 38.91; MSA 15.1991).
    4. Schools and School Districts — Teachers—Tenure—Administrators — Administrative Tenure.
    A tenured teacher, acting as an administrator, is to be granted tenure in the administrative position unless the contract with the school board specifies that tenure is to be denied.
    5. Schools and School Districts — Teachers—Tenure—School Board Policies — Administrative Tenure — Tenure Commission — Interpretation of Contract.
    The tenure commission need not look to the policies behind a school board’s decision to accord tenure to particular administrative positions; their task is to determine whether an individual administrator’s contract grants or denies tenure to that administrator.
    6. School and School Districts — Tenure Commission — Teacher Tenure Dispute — Findings of Fact.
    The tenure commission must evaluate the circumstance surrounding the termination of a tenured party and make factual findings.
    7. Limitation of Actions — Schools and School Districts — Teachers — Tenure—Statutes.
    A thirty-day statute of limitations is imposed on appeals to the teachers’ tenure commission (MCLA 38.121; MSA 15.2021).
    8. Schools and School Districts — Teachers’ Tenure Act — Reduction in Personnel — Good Faith — Subterfuge—Tenure Commission — Review—Factual Determinations.
    The tenure commission has the responsibility to make a factual determination as to whether a school board’s decision to reduce personnel is in good faith or an excuse for a wrongful discharge or demotion where a teacher alleges his demotion or discharge on the grounds of necessary reduction in personnel is a mere subterfuge to deny a teacher his rights under the tenure act; if the school board’s declaration that a reduction in personnel is necessary is unreviewable, then the board is free to evade the limitations on its authority imposed by the .teachers’ tenure act.
    9. Schools and School Districts — School Boards — Arbitrary Decisions — Reductions in Personnel — Tenure Commission — Review.
    The tenure commission is empowered to review a school board’s action to insure that the board does not make arbitrary decisions under the guise of necessary reductions in personnel.
    10. Schools and School Districts — Tenure Commission — Appeal and Error — Right to Appeal — Reduction in Personnel — Economic Necessity.
    A school board can forestall appeals to the tenure commission which are based upon allegations that a reduction in personnel was a mere subterfuge to deny a teacher his rights, by notifying the teacher of his right to appeal his termination whether it is claimed that the termination is for cause or economic necessity.
    11. Schools and School Districts — Appeal and Error — Statute of Limitations — Tolling—Right to Appeal — Notice—Tenure Act — Liberal Construction — Purpose of Act — Protection of Teachers.
    The thirty-day statute of limitations for appeals to the tenure commission should be tolled until a teacher is notified of his right to appeal; the teachers’ tenure act must be construed liberally in favor of protecting teachers’ rights and a major purpose of the act is to eliminate arbitrary and capricious demotions or dismissals by boards of education; therefore, bj allowing a board to disguise a discharge or demotion for cause as one for economic necessity and not notify the teacher of his or her right to appeal would undermine a major purpose of the tenure act.

      Foster, Swift & Collins, P. C. (by Arthur R. Przybylowicz), for plaintiff.

      Combs, Huff & Carey, for defendant.
    Before: D. E. Holbrook, Jr., P. J., and Allen and D. R. Freeman, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   D. E. Holbrook, Jr., P. J.

This case arises under the teacher tenure act and deals with a tenured teacher’s right to appeal to the State Tenure Commission (hereafter "tenure commission” or "commission”) when the teacher, here acting in an administrative capacity, alleges a dismissal or demotion for economic necessity is a subterfuge for a dismissal or demotion for cause.

There is little dispute about the facts. The plaintiff, Robert Goodwin, commenced his employment with the defendant, Kalamazoo Board of Education, at the beginning of the 1960-1961 school year. Subsequently he gained tenure as a classroom teacher. In October 1965 plaintiff accepted an administrative position as Assistant Director of Buildings and Grounds and in July 1970 he accepted the position of Director of Buildings and Grounds.

At the beginning of the 1973-1974 school year the defendant advised plaintiff that the position of Director of Buildings and Grounds was being eliminated. Plaintiff reluctantly accepted a lower paying position as Supervisor of the Stockroom and expressly reserved all rights he had in his previous position. Seven months later plaintiff filed a petition with the tenure commission alleging the defendant school board violated the tenure act by "discharging and/or demoting the plaintiff, within the meaning of the tenure act, while completely ignoring the plaintiff’s rights under the teacher tenure act including reasonable and just cause, proper filing of charges, a hearing or statement of rights, and/or any other rights guaranteed him under Article IV, § 5 of the act.” Defendant countered, claiming the position was no longer necessary and that plaintiff was not discharged or demoted and therefore not entitled to charges, a hearing or statement of rights or any other procedures required when dismissing a tenured teacher for cause.

The tenure commission rendered a decision, expressly finding that plaintiff had tenure as Director of Buildings and Grounds, but also finding that there was no right to a school board hearing in an economic layoff situation and that plaintiff’s petition with the commission was untimely filed since filed after the 30-day statute of limitation period.

Plaintiff appealed the commission’s decision to circuit court and the court held that when a teacher alleges a termination for economic necessity is a mere subterfuge for what is in fact a discharge for cause and absent a showing of prejudice in the late filing by the school board, the 30-day statute of limitation for appeals to the tenure commission is tolled until a teacher is notified of his rights under the act. The court held that plaintiff’s petition was timely filed. Defendant’s appeal of this circuit court order is the subject of this appeal.

Before reaching the merits, however, we note a second decision of the tenure commission involving the same parties. Before the beginning of the 1975-1976 school year plaintiff was notified that the position of Supervisor of the Stockroom was being eliminated. Plaintiff accepted a position as a junior high school teacher with full reservation of rights and appealed again to the tenure commission. An important aspect of this second commission decision was its conclusion that one may gain tenure in an administrative position only where "certification” is required for that position. Since the Director of Buildings and Grounds did not require certification, the commission concluded that the plaintiff could not gain tenure in that position. The commission therefore determined that it did not have jurisdiction to hear plaintiff’s appeal.

Since the commission’s second decision amounts to a reversal of its first decision, upon which the circuit court order is based, and since both parties have argued various aspects of the commission’s second decision, we must consider this case in light of the second commission ruling.

I

The first question is whether the tenure commission has jurisdiction to hear plaintiff’s appeal. Those who have achieved tenure status in a school district are granted a statutory right to appeal a tenure-related decision-to the commission. MCLA 38.121; MSA 15.2021. We conclude that since plaintiff was granted tenure as Director of Buildings and Grounds, the commission has jurisdiction to hear his appeal.

The parties clash over the issue of whether plaintiff did, or even could, gain tenure as Director of Buildings and Grounds. The issue of "administrative tenure” has been extensively briefed by both parties and is addressed in the tenure commission’s second opinion. Because a resolution of this issue is central to plaintiff’s case and apparently a question of first impression, we examine it now.

Each party argues legislative history supports their respective interpretations of MCLA 38.91; MSA 15.1991. Defendant school board and the tenure commission argue that the only positions in which a teacher can gain non-classroom teacher tenure are those positions which require "certification” by the State Board of Education. The commission contends its expertise lies in the area of educational instruction and not in all aspects of running a K-12 school district. Accordingly, the school board and commission reason, since the Director of Buildings and Grounds does not require certification nor does it involve instructional supervision, plaintiff could never gain tenure in such a position. On the other hand, plaintiff argues that one may acquire tenure in those administrative positions which require the exercise of "supervisory and/or policy-making authority”. Plaintiff appends his official job description and argues he should be granted tenure since his job responsibilities include supervisory and personnel policy decisions. Essentially defendant, plaintiff and commission argue that the spirit of MCLA 38.91; MSA 15.1991 does or does not encompass plaintiffs position and urge us to find certain types of positions are included by or excluded from the statute as a matter of law.

Our interpretation of MCLA 38.91; MSA 15.1991 does not adopt the conclusion of either party or the tenure commission. We read the statute as authorizing individual school districts to determine which administrative positions should carry tenure. Whether a tenured teacher who accepts an administrative positions is to be granted tenure is to be determined by contract between the teacher/ administrator and school board. We reject the contentions of the parties and the commission that the statute should be interpreted to dictate categories of administrative positions which carry tenure as a matter of law. Only when a statute is ambiguous is a court forced to examine legislative intent. Collins v Motorists Mutual Insurance Co, 36 Mich App 424, 430; 194 NW2d 148 (1971). We believe the statute is clear on its face.

Prior to the 1963 amendment, the forerunner of MCLA 38.91; MSA 15.1991 read in pertinent part:

"After the satisfactory completion of the probationary period, a teacher shall be employed continuously by the controlling board under which the probationary period has been completed, and shall not be dismissed or demoted except as specified in this act: Provided, however, That when the controlling board of any school district shall speciñcally provide in each contract of employment of any teacher employed as superintendent, assistant superintendent, or principal, made with such teacher after the completion of the probationary period, that such teacher shall not be deemed to be granted continuing tenure in such administrative capacity by virtue of such contract of employment, then such teacher shall not be granted tenure in such administrative capacity but shall be deemed to have been granted continuing tenure as an active classroom teacher in such school district.” (Emphasis supplied.)

In short, the 1941 act allowed the school board to prevent, by contract, a tenured teacher who was serving as a superintendent, assistant superintendent or principal from gaining tenure in these particular positions. Absent an express contractual exclusion, the teacher would gain tenure in the particular administrative position.

In 1963 the statute was amended accordingly (deletions are lined through; additions are in all capitals):

"Sec. 1. After the satisfactory completion of the probationary period, a teacher shall be employed continuously by the controlling board under which the probationary period has been completed, and shall not be dismissed or demoted except as specified in this act. Frovidod, however, That whon IF the controlling board of any school distr-ief-shall specifically provide in eaeh A contract of employment of any teacher employed OTHER THAN as A CLASSROOM TEACHER, INCLUDING BUT NOT LIMITED TO, A superintendent, assistant superintendent, er principal, DEPARTMENT HEAD OR DIRECTOR OF CURRICULUM, made with such teacher after the completion of the probationary period, that such teacher shall not be deemed to be granted continuing tenure in such administrative capacity by virtue of such contract of employment, then such teacher shall not be granted tenure in such administrative capacity, but shall be deemed to have been granted continuing tenure as an active classroom teacher in such school district.”

This amendment expanded the categories in which a teacher could gain, or be excluded by contract from gaining, tenure in administrative capacities. The "including but not limited to” language allows a school district some flexibility in establishing what types of administrative positions should carry tenure status.

In view of the wide range in size of school districts, the statute enables local school boards to tailor their administrative tenure policies accordingly. The statute does not attempt to dictate uniform tenure policies for administrators in all school districts. One school board may not wish to allow school principals to gain tenure while another board may wish to allow the supervisor of the stockroom to gain tenure. These are decisions to be made by each school board and are to be given effect through contract provisions between the board and administrators.

If the contract of a tenured teacher acting as an administrator does not specify the individual is to be denied tenure, the statute stipulates that the individual is to be granted tenure in the administrative position. If the board does not want to grant tenure, it simply inserts a contractual provision denying tenure. The commission’s claims of lack of expertise in noninstructional fields are beside the point. Their task is to determine whether an individual administrator’s contract grants or denies tenure to that administrator. The commission need not look to the policies behind a school board’s decision to accord tenure to particular positions.

In view of the commission’s two decisions that plaintiff’s contracts as Director of Buildings and Grounds did not deny him tenure, plaintiff has achieved tenure in that position. The commission’s second decision denying tenure is erroneous since it relies on an incorrect interpretation of the statute.

However, we do not intend to imply a tenured position may not be validly eliminated or what plaintiff’s remedy or relief, if any, may be. Further we express no opinion as to whether plaintiff’s termination as Director of Buildings and Grounds was due to a valid or invalid reduction in personnel. The commission must evaluate the circumstances surrounding plaintiff’s termination and make factual findings. Our remand to the commission is necessary because the commission erroneously prejudged plaintiff’s claim on jurisdictional grounds rather than reaching the merits.

II

Since we conclude that the commission has jurisdiction we must address the issue of whether plaintiff’s petition was timely filed with the commission. As noted above, MCLA 38.121; MSA 15.2021 imposes a 30-day statute of limitations for appeals to the commission. Plaintiff filed his appeal approximately seven months after the school board’s decision. The circuit court agreed with plaintiff that the 30-day limitation did not bar his appeal. The trial court issued the following order:

"1. The 30-day limitation for the filing of a petition with the State Tenure Commission in Article VI, § 1, of the Teacher Tenure Act does not bar a petition when a teacher alleges that his termination as a necessary reduction in personnel is a mere pretext for his discharge unless the controlling board of education has provided the teacher with notice of his rights under the Tenure Act and the controlling board proves actual prejudice resulting from the delay in filing the petition.
"2. The Petition of Appellant Robert Goodwin was timely filed with the State Tenure Commission because the Appellee Board of Education has not provided the Appellant with notice of his rights under the Teacher Tenure Act and actual prejudice to the Appellee resulting from the delay in filing has not been shown.”

We agree with the trial court.

When a teacher alleges his demotion or discharge on the grounds of "necessary reduction in personnel” is a mere subterfuge to deny a teacher his or her rights under the tenure act, the tenure commission has the responsibility to make a factual determination as to whether the board’s decision is in good faith or an excuse for a wrongful discharge or demotion. Freiberg v Board of Education of Big Bay De Noc School District, 61 Mich App 404, 414; 232 NW2d 718 (1975). In Freiberg the Court reasoned:

"If the school board’s declaration that a reduction in personnel is necessary is unreviewable, then the board is free to evade the limitations on its authority imposed by the teachers’ tenure act.” 61 Mich App at 414.

To ensure a board does not make arbitrary actions under the guise of "necessary reductions in personnel”, the tenure commission is empowered to review the board’s action.

In Biberstine v Port Austin Public School District No. 9, 51 Mich App 274; 214 NW2d 729 (1974), lv den, 392 Mich 766 (1974), the Court held that the 30-day statutory limitation for filing an appeal with the tenure commission is tolled when the board of education fails to give a teacher written notice of charges and a statement of rights under the act. Such notice and statement of rights, as well as a hearing, are required under MCLA 38.102; MSA 15.2002 upon discharge or demotion of a tenured teacher. However, notice, charges and a school board hearing need not be given when a teacher’s position is being eliminated due to a lack of funds. Steeby v School District of the City of Highland Park, 56 Mich App 395; 224 NW2d 97 (1974). In Steeby the Court concluded that there would be no real reason for "charges” or a school board hearing in an economic discharge situation since the teacher’s conduct or performance is not being called into question. There is no discussion whatever in Steeby regarding a teacher’s right to appeal an economic termination decision to the tenure commission.

A 30-day statute of limitations is an extremely rigorous requirement. In concluding the statute was tolled unless a teacher is given proper notification of his or her rights, the Court in Biberstine was obviously concerned that teachers will be unaware of the brief 30-day appeal period.

"In light of the board’s failure to notify the plaintiff of his rights under the teachers’ tenure act, it is not unlikely that plaintiff was unaware of his right to appeal to the State Tenure Commission. We hold, therefore, that where, as here, a board of education attempts to discharge a tenure teacher without fully complying with the various provisions of the teachers’ tenure act, the 30-day limitation in which the teacher has to appeal to the State Tenure Commission is tolled until such time as the school board makes its decision in accordance with the teachers’ tenure act. Our holding is based upon sound reasoning and common sense. To rule otherwise would permit a school board to unilaterally circumvent the procedural safeguards of the teachers’ tenure act by its own wrongdoing.” (Emphasis supplied.) 51 Mich App at 278.

While Biberstine deals with a situation where the school board was discharging for cause, the statutory appeal period is the same in an economic termination case and the need for notification of the teacher’s right to appeal is equally great.

We must read Biberstine in light of Freiberg. If a teacher is to be afforded the right to tenure commission review of a board’s "economic necessity” termination, the teacher must be properly notified of his or her right to that review. When, as here, a teacher alleges that a termination for economic necessity is a mere subterfuge, he or she is, in effect, alleging that the termination is a discharge or demotion without reasonable cause. To allow a board to discharge on the pretext of economic necessity, not inform the teacher of appeal rights and then hold the teacher to the 30-day limit would allow the board to profit from its own wrongdoing.

Defendant school board argues that it will never know when a teacher will allege a discharge is a subterfuge and a teacher may challenge a termination months or years after it occurs. We agree with the trial judge’s response to this argument— to forestall any appeals after the 30-day period the board can notify a teacher of the right to appeal a termination, whether for cause or economic necessity. Presumably a teacher will be notified of an economic termination in writing so it would not seem too great a burden to append a statement of the right to appeal to the tenure commission.

The teachers’ tenure act must be construed liberally in favor of protecting teachers’ rights. Weckerly v Mona Shores Board of Education, 388 Mich 731, 734; 202 NW2d 777 (1972), Freiberg, supra, at 412. A major purpose of the act is to eliminate arbitrary and capricious demotions or dismissals by boards of education. By allowing a board to disguise a discharge or demotion for cause as one for economic necessity and not notify the teacher of his or her right to appeal would undermine a major purpose of the tenure act.

We therefore hold that the 30-day statute of limitations for appeals to the tenure commission is tolled until a teacher is notified of his right to appeal. This holding is not in any way in conflict with Steeby, supra, which deals only with charges, notice and hearing before the school board in an economic layoff situation and does not deal with notification of a teacher’s right to appeal to the tenure commission.

Affirmed and remanded to the teachers’ tenure commission for factual findings. No costs, interpretation of a statute being involved.

       MCLA 38.71 et seq.; MSA 15.1971 et seq.

       MCLA 38.105; MSA 15.2005.

       MCLA 38.121; MSA 15.2021.

        See text of the circuit court order, infra.

       "Certification” is defined and granted by the Michigan Department of Education and, in general, indicates qualification for a particular position, whether teaching or administrative.

       We note also that plaintiff retains his tenure as a classroom teacher despite promotions to, or demotions from, administrative positions. MCLA 38.91; MSA 15.1991.