author: Allen, J.

text:
    ALPENA TITLE, INC. v ALPENA COUNTY
    Docket No. 77-3191.
    Submitted May 10, 1978, at Lansing.
    Decided June 20, 1978.
    Alpena Title, Inc., instituted suit against Alpena County, the county board of commissioners and the county register of deeds for a declaratory judgment that the monthly fee charged Alpena Title, Inc., for the copying of the entire tract index maintained by the county was arbitrary and unreasonable. Summary judgment for defendants. Plaintiff was thereafter granted leave to file an amended complaint. The defendants counterclaimed for the unpaid fees owed by the plaintiff. The Alpena Circuit Court, Allan C. Miller, J., found for the defendants on their counterclaim and denied the plaintiff the relief prayed for. Plaintiff appeals. Held:

    The fee of $600 per month for the wholesale copying of the tract index is not discriminatory and is supported by the record. The board of commissioners may charge a reasonable fee for access to and the copying of tract information. The cost of maintaining the tract index is a factor which may be used in establishing a reasonable fee. The county may include reasonable charges for the time spent by its employees and the inconvenience occasioned by wholesale cross-reference to the instruments listed in the tract index. The section of the Freedom of Information Act pertaining to fees to be charged by a public body for providing a copy of a public record does not repeal or modify the section of the systems of abstracts of title act regarding fees for the inspection of such records and, therefore, the provisions of the latter apply to this action.
    Affirmed.
    1. Records — Municipal Corporations — Tract Indexes — Copying—• Fees — Statutes.
    A county board of commissioners may charge a reasonable fee for access to and the copying of county tract index information in accordance with the statute regarding fees for the inspection of such records (MCL 53.147; MSA 5.1007).

      References for Points in Headnotes
    [1-3] 66 Am Jur 2d, Records and Recording Laws §§ 19, 21, 193.
    [4] 66 Am Jur 2d, Records and Recording Laws §§ 32-46.

      2. Records — Municipal Corporations — Tract Indexes — Cost of Maintenance — Reasonable Fees — Copying.
    The cost of maintaining a tract index is a factor which may be used in establishing a reasonable fee to be charged for access to and copying of tract index information; a county may include reasonable charges for the time spent by its employees and the inconvenience occasioned to the county by wholesale cross-reference to the instruments listed in the tract index in establishing a reasonable charge for the wholesale copying of a tract index.
    3. Records — Municipal Corporations — -Tract Indexes — Copying— Reasonable Fees.
    A $600 monthly fee charged a title company for the copying of a county’s entire tract index is reasonable and non-discriminatory where the fee was calculated according to the cost of maintaining the tract system and supporting documents and based upon the title company’s actual use of the tract index in relation to all other persons using the index.
    4. Records — Freedom of Information Act — Fees—Public Records —Abstracts of Title — Tract Indexes — Inspection—Statutes.
    The section of the Freedom of Information Act pertaining to the fees to be charged by a public body for providing a copy of a public record does not repeal or modify the section of the systems of abstracts of title act regarding fees for the inspection of such records; therefore, the provisions of the latter act apply in setting a fee for the copying of tract index information (MCL 15.234, 53.147; MSA 4.1801[4], 5.1007).

      Patrick D. Brady, for plaintiff.

      Boyce, Yahne, Wenzel & White, for defendants.
    Before: Beasley, P. J., and Allen and H. E. Deming, JJ.

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

   Allen, J.

What fees, if any, may be charged by a county board of commissioners for the copying of the entire tract index maintained by the county pursuant to MCL 53.141; MSA 5.1001? On July 25, 1977, the trial court, sitting without a jury, held that a monthly fee of $600 set by the board of commissioners was reasonable. Plaintiff appeals of right.

Plaintiff, a title company engaged in the preparation of abstracts of title, commenced doing business in Alpena in July, 1975. At that time, plaintiff possessed no records dealing with Alpena County lands. Accordingly, in 1975, it sought permission from the register of deeds to photograph or obtain a photocopy of the Alpena County tract index. When the register of deeds refused permission on the ground that only the board of commissioners could authorize copying the tract index, plaintiff commenced negotiations with the board of commissioners. On January 8, 1976, the board of commissioners, by resolution, established a monthly fee of $600. Petroleum Abstract & Title Service, Inc., a corporation furnishing abstracts to oil companies, was also charged and was paying without objection $600 per month for use of the tract index.

Alpena County is one of some 27 counties which maintain a tract index. It was undertaken during the depression with Federal funds but since then has been maintained with general county funds. Plaintiff’s only competitor, Northern Abstract and Title Company, owned its own tract records which it had acquired by purchase from two preceding companies. It rarely referred to the county tract books but, during the noon hour would make copies of recorded instruments for updating its own tract books. Occasional users of the tract index including attorneys, surveyors and real estate dealers, were not charged for tract index use but certain oil companies or petroleum abstractors who frequently used the index were charged $10 an hour. This charge was raised to $12 an hour as of January 1, 1977.

Plaintiff refused to pay the monthly charge, instituted suit on January 16, 1976, and continued to use the tract index until October 20, 1976, at which time the board of commissioners denied plaintiff further use of the index until the then current arrearage of $5,690 was paid. Summary judgment in favor of defendants was entered September 2, 1976. Plaintiff then obtained a new attorney who promptly filed a motion for a new trial. The motion was denied but plaintiff was granted leave to file an amended complaint. On February 3, 1977, plaintiff filed an amended complaint for a judgment (1) declaring the fee of $600 per month unreasonable and arbitrary, and (2) declaring that plaintiff had the right to copy the tract index pursuant to reasonable rules and regulations. Defendants counterclaimed for the $5,690 in unpaid fees. Following a two-day bench trial, the trial court entered judgment on July 25, 1977, denying plaintiff the relief prayed for on its amended complaint, and granting judgment for $5,690 on defendants’ counterclaim.

Initially, we address the question of whether a county may make any charges at all for the inspection of tract records maintained in the office of the register of deeds. In Burton v Tuite, 78 Mich 363; 44 NW 282 (1889), our Supreme Court held that records in the office of the register of deeds were public records open to inspection by the general public without charge. However, in 1921, the Legislature enacted the system of abstracts of title bill. MCL 53.141 et seq.; MSA 5.1001 et seq. Under that statute, any county which then maintained a county tract index was authorized to charge for the inspection of tract index records.

"Sec. 7. All books, records, indexes and memoranda of the systems hereby authorized shall at all reasonable hours be open for inspection by any person lawfully entitled to have access thereto under such reasonable rules and regulations and subject to such fees and charges as may be from time to time established by the abstractor, subject to such limitations and restrictions, if any, as may be from time to time made by the board of supervisors.” (Emphasis supplied.)

No Michigan case has interpreted the above section. But in Lawyers Title Ins Corp v Youngblood (Unpublished memorandum opinion, civil No. 31729, ED Mich, 1971), Judge Thornton held that under authority of the statute, the board of commissioners might charge defendant Transamerica Title Insurance Company for the wholesale copying of all of the tracts. Clearly, Alpena County, which along with some 26 other counties maintains a tract index, falls within the purview of MCL 53.141; MSA 5.1001, and may impose reasonable charges for access to and the copying of tract information.

We next inquire whether the fee of $600 per month was reasonable. Plaintiff does not seriously dispute the right of the county to impose a charge but contends that any charge imposed must be limited to examination of the tract books themselves and may not include charges for time spent by plaintiff in cross-referencing and examining the instruments referred to in the tract index.

The tract index maintained by Alpena County consists of seven volumes containing approximately 3,000 pages. Entries in the index refer only to liber and page, and do not contain the names of the parties to the instrument. Thus, the tract index alone is not sufficient for plaintiff’s purposes. It is valuable to plaintiff only if plaintiff may then pull from the files the liber referred to, examine them and make a copy thereof or notes therefrom. Based on the transcript, it appears that for each hour spent in examining or copying the tract index, several hours are required to cross-reference. While plaintiff is willing to pay $10 per hour for each hour required for its work on the tract index, it is unwilling to pay anything but a minimal fee for the additional hours of cross-reference usage. Plaintiff contends that because the fee charged by the county included reimbursement for time expended in cross-referencing and copy work, the $600 monthly fee is unreasonable. Additionally, plaintiff contends that defendant’s expert witnesses improperly predicated their estimate of a reasonable charge by considering the commercial value of the tract index and the expense of maintaining the index.

We are not persuaded that the costs of maintaining the tract index is a factor which may not be used in establishing a reasonable fee. Lawyers Title Ins Corp, supra, held such costs could be considered. In that case Transamerica argued that the charge sought to be imposed by the Wayne County Board of Commissioners should not exceed the bare cost of copying the tract book. In rejecting this claim the court said:

"The operation of the tract index is something of a going business that is an expense to the county, both retroactively, presently and in futuro. The fees charged aré intended to defray, to some extent, this expense. The parties are really in agreement on these points. We now approach the divergence point. Transamerica, and Transamerica alone, considers that it is the same as an individual inspector. Generally such an individual pays the set fee and copies the record with respect to a particular tract. Transamerica says that the right to copy in wholesale fashion the records of ALL the tracts should cost them exactly the total amount arrived at by adding up the cost for copying each tract. The other parties say that in the case of such copying of the tract index in its entirety the whole is much greater than the sum of its parts.
"Transamerica is surely entitled to inspect and copy the tract index records. Neither the State of Michigan nor the County of Wayne, by their respective governing bodies, has seen fit to indicate that there are those who may copy and those who may not. The State Legislature has seen fit, however, to place this function in charge of the county governing body, the Wayne County Board of Commissioners. It is they who make the determinations affecting the maintenance of the Wayne County Tract Index. They would, no doubt, look aghast at the specter of a United States District Court usurping the function explicitly delegated to them by the Legislature of the State of Michigan. The task of determining, in the first instance, whether wholesale copying of the tract index is different from single tract copying, fee-wise, and if so what the fee differential should be, lies squarely in the lap of the Board of Commissioners.” (Emphasis supplied.)

Nor are we persuaded by the distinction which plaintiff draws between the propriety of charges for time spent in examining and copying the tract index as such and the impropriety of charges for time expended in cross-referencing to the books containing deeds, mortgages and other instruments affecting title. Usage of the tract index in its entirety is so inextricably intertwined with use of the grantor-grantee conveyances and mortgages, that a county, in establishing a reasonable charge for the wholesale copying of a tract index, may include reasonable charges for the time spent by its employees and the inconvenience occasioned to the county by wholesale cross-reference to the instruments listed by liber and page in the tract index. Throughout the hearing, defendants insisted that the fee charged did not include plaintiffs time spent examining deeds and mortgages. Assuming, arguendo, that it did, we find no fault provided the testimony supports the charge.

Does the record support the trial court’s finding that the fee charged was reasonable and non-discriminatory? Plaintiff’s president testified that after contacting the counties operating a tract index he received responses from 17; that only 4 of the 17 charged for use of the tract index; that of these 4, Clare, Montmorency and Jackson had an hourly charge, and Oakland charged $1,000 a month for unlimited access, and $600 to $800 a month for limited access. He stated that county population has a relationship to the size of the fee and that if Oakland’s fee were adjusted to Alpena’s population the Oakland charge would be about $50. Unfortunately none of the four mentioned counties were confronted with a situation, as here, where a newly established firm was seeking to copy the complete tract book and all conveyances. Defendant’s expert witness testified from a written appraisal which he had made for the assistance of the county board. He stated that the cost of reproducing the tract index was $195,000, but if one would deduct therefrom some of the defects of the index, the tract’s "actual value” was $130,000. He further testified that based on an actual or market value of $130,000, the fair rental value of the index was $1,050 a month for unlimited use but could be reduced to $850 per month if the office was not used by more than one person at a time for a maximum of five hours a day. He further testified that the county was spending $17,852 annually "to support the tract index in addition to the required records”. The register of deeds testified that plaintiffs use of her office was 70% of the total use of her office by all persons. Plaintiffs president estimated his company’s use of the office was 25% of the total use.

This Court concludes that the monthly charge of $600 is supported by the record. If the holding in Lawyers Title Ins Co, supra, that fees may reflect the county’s cost "both retroactively, presently and in futuro”, is accepted, then clearly a fee of $850 per month is sustainable. But assuming, arguendo, that neither replacement nor market value is a factor which may be considered, the $600 per month charge is supported by the uncontradicted testimony that the cost of maintaining the tract system and supporting documents is $17,852 annually. At 70% usage, plaintiffs annual share of the cost if $12,496.40. If plaintiffs use is the mid-point between plaintiffs estimated 25% and defendant’s 70% usage, then the use factor is 47.5% or $8,479.70. Either figure is higher than the $7,200 annual charge established by defendants.

Contrary to plaintiffs assertion, we do not find the fee discriminatory. All other persons, save Petroleum Abstract & Title Service, Inc., used the tract index or deeds and mortgage records for brief periods of time. Northern Abstract and Title Company, plaintiffs only competitor, possessed its own tract indexes which it had purchased from two previous abstracting companies. Consequently, Northern’s use of the tract was virtually nil. The closest comparison to plaintiff’s situation is the fee of $600 per month charged Petroleum Abstract & Title Service, Inc. Its use of the office — 10 to 13 days a month — was far less than plaintiff’s almost daily use. While it is true that plaintiff was treated differently in respect to having to work at the outer counter where books and records were brought to it and was denied access to the vault, the record also discloses that the vault area was small, and special accommodations were required for plaintiff’s intensive use of the records. The testimony fully supports the trial judge’s findings in this respect.

Lastly, we are told that the fee in question is excessive because it violates § 4 of the recently enacted Freedom of Information Act. MCL 15.231 et seq.; MSA 4.1801(1) et seq. That section reads in part:

"(1) A public body may charge a fee for providing a copy of a public record. Subject to subsection (3), the fee shall be limited to actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14.
"(3) In calculating the costs under subsection (1), a public body may not attribute more than the hourly wage of the lowest paid, full-time, permanent clerical employee of the employing public body to the cost of labor incurred in duplication and mailing and to the cost of examination, review, separation, and deletion. A public body shall utilize the most economical means available for providing copies of public records.”

This statute took effect April 13, 1977 — a date considerably later than when the fee was set in January 1976, or when the arrearage of $5,690 had accrued in October, 1976. Thus, the statute does not apply to defendant’s counterclaim on which judgment was entered. But does the statute repeal or modify § 7 of the systems of abstracts of title law cited earlier in this opinion? We think not. That statute was not repealed although the Legislature did repeal other statutes. The fact that the Legislature repealed some provisions of existing laws but did not repeal any portion of the system of abstracts of title statute, indicates that the Legislature did not intend that the new statute should apply. Additionally, the title of the Freedom of Information Act does not appear to include the subject matter in the instant dispute. We are not here seeking disclosure of information regarding the affairs of government or the conduct of officials. We find nothing here which would contribute to participation "in the democratic process”.

Affirmed, costs to defendants.

       Only three of the five justices participated in the decision. Three justices held that the register of deeds’ records were public records and, as such, were open to inspection by the public. Only two justices agreed that no charge for the information could be made.

         Tract index is a system of record-keeping that indexes properties by location or lot rather than by grantor-grantee. The entry refers to a liber and page of either deeds or mortgages. It does not give the names of the parties or the detailed description of the property. This information is supplied by examination of the liber and page referred to.

       "The plaintiff company in the interim and during the pendency of these proceedings used the offices of the Register of Deeds, both the statutory and the tract index books, and began its infant operation. It had no independent records and, as a result, maintained a rather continuous and intensive use of the facilities, being anywhere from 15 minutes to five hours a day in the office of the Register of Deeds; the same being a relatively small space being only one major counter. And it would appear from the diagrams and photographs that would not be room for any — much room for any additional counter space.
      "The vault area of the Register of Deeds it [sic] not a large area, and there is no question but what the intensive use that was planned by the Alpena Title Company was a special burden upon the Register of Deeds Office and one that required accommodation.”

       Sections 21, 22 and 23 of 1969 PA 306 entitled the Administrative Procedures Act were repealed. MCL 15.245; MSA 4.1801(15).

       "It is the public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.” MCL 15.231(2); MSA 4.1801(1)(2).


source: Caselaw Access Project

author: J. H. Gillis, J.

license: Public Domain

text:
    THUMSER v LAKEY FOUNDRY CORPORATION
    Docket No. 77-3256.
    Submitted April 4, 1978, at Grand Rapids.
    Decided June 20, 1978.
    Leave to appeal applied for.
    Russell R. Thumser was employed as a skilled millwright by Lakey Foundry Corporation before 1971. His position was terminated, and subsequently he filed a petition for workmen’s compensation benefits alleging that he had contracted a lung disease. Pending a ruling on the petition, Thumser obtained an unskilled position with McGuire’s Auto Parts. He was injured on that job, and filed a petition for compensation for that injury. The hearing referee concluded that Thumser had sustained two distinct work related disabilities and ordered payment of compensation by the Self-Insurers’ Security Fund for the Lakey disability and by McGuire and CNA Insurance Company for the McGuire injury. Lakey and McGuire both appealed, and the Workmen’s Compensation Appeal Board recalculated the benefits due and held each employer separately liable for the disability arising from their respective employments of Thumser. McGuire appeals by leave granted, contending the board erred in ordering concurrent compensation payments and that the total compensation awarded exceeds the statutory maximum. Held:

    1. The concurrent awards are proper. The plaintiff was disabled from his skilled position and reestablished a wage earning capacity as an unskilled worker, and may be compensated for injuries sustained in each wage earning capacity.
    2. The total compensation may not exceed the statutory maximum and must, therefore, be revised.
    Reversed and remanded for entry of a proper order.
    1. Workmen’s Compensation — Multiple Injuries — Separate Wage Earning Capacities.
    An employee may establish two separate wage earning capacities and be compensated for injuries sustained in each capacity at the same time; therefore, payment of workmen’s compensation benefits was properly ordered from two employers where the employee was initially disabled from a skilled position by a lung disease contracted there and later established a. wage earning capacity with another employer as an unskilled worker at which employment he was injured.

      References for Points in Headnotes
    [1] 82 Am Jur 2d, Workmen’s Compensation §§ 344, 345.
    [2] 82 Am Jur 2d, Workmen’s Compensation § 345.

      2. Workmen’s Compensation — Two Employers — Total Benefits— Maximum Benefits.
    An award to an injured employee by the Workmen’s Compensation Appeal Board of disability benefits from two employers, the aggregate total of which exceeds the statutory maximum, must be reduced, under the facts of the case, by discounting equally the amounts each employer was ordered to pay so that the sum equals the statutory maximum.

      Marcus, Ruck & Flynn, P. C. (by David M. Wells), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard F. Zapala, Assistant Attorney General, for defendants Lakey Foundry Corporation and Self-Insurers Security Fund.

      Cholette, Perkins & Buchanan (by Edward D. Wells), for defendants McGuire’s Auto Parts and CNA Insurance Company.
    Before: R. B. Burns, P. J., and J. H. Gillis and D. C. Riley, JJ,
   J. H. Gillis, J.

The facts in this matter are not in dispute. Plaintiff was intermittently employed by defendant Lakey Foundry Corporation (hereinafter referred to as Lakey) between 1942 and 1971 as a skilled millwright.

In 1971, Lakey was suffering financial difficulties and was forced to terminate plaintiff’s position. Some months later, on June 26, 1972; plaintiff filed a petition for workmen’s compensation benefits for an alleged disability arising out of his employment with Lakey.

During the pendency of these proceedings, plaintiff secured an unskilled position with defendant, McGuire’s Auto Parts (hereinafter referred to as McGuire) and remained in their employ for approximately 12 months.

On June 29, 1973, in the course of his employment at McGuire, plaintiff suffered a bilateral hernia while lifting a heavy object.

Subsequent thereto, plaintiff filed an additional claim for workmen’s compensation against McGuire for the injury he sustained while in their employ.

A hearing was conducted on both claims and the referee concluded that plaintiff had sustained two distinct work related disabilities, the first being the lung disease contracted by plaintiff during his tenure with Lakey, and the second being the bilateral hernia suffered by plaintiff while in McGuire’s employ. The referee also stated that:

"It is therefore ordered that Self Insurers Security Fund [Lakey] pay compensation at the rate of 2/3 of the wage loss per week for partial disability to said employee from June 26, 1972 to June 29, 1973 inclusive, and McGuire and CNA pay compensation at the rate of $103.97 per week from 6-30-73 to 3-5-75 inclusive for total disability to said employee, and further, that said employee is still totally disabled and McGuire and CNA shall pay compensation at the rate of $103.97 until further order of the Bureau. All payments shall be made with interest at the rate of 6% from date due until paid. Credit shall be given for previous payments.
"All payments for the period 6-26-72 to 6-29-73 are for a lung disease. As specified in section 418.535, I find that the payments ordered for the periods after 6-29-73 are 60% for lung disease and 40% for bilateral hernia. Back problems are not found to be contributing to the disability at this time. The SISF [Lakey] shall reimburse McGuire & CNA for 92.9% of the payment McGuire and CNA make for lung disability. (The SISF would currently reimburse at the rate of 92.9% of 60% of $103.97 weekly.)”

Both Lakey and McGuire appealed this decision to the Workmen’s Compensation Appeal Board.

On August 5, 1977 the appeal board set aside the referee’s order and completely recalculated the benefits due plaintiff. The appeal board held each defendant separately liable for the disability arising out of their respective employments of plaintiff.

"Benefits payable to plaintiff by both employers will be based on average weekly wages of $215 at Lakey Foundry with a November 4, 1971 injury date, and $155.96 at McGuire’s with a June 29, 1973 injury date and three dependents.
"Lakey Foundry and Self-Insurers’ Security Fund (SISF) are ordered to pay total compensation from the date of his petition SISF benefits (June 26, 1972), to July 10, 1972, at the rate of $96 per week and compensation benefits from July 11, 1972, to the date of hearing and until the further order of the Bureau at the weekly rate of $59.04, the full difference between his average weekly wages. Pursuant to Section 545, SISF is entitled to reimbursement from the Dust Fund after the payment of $12,500.
"McGuire’s Auto Parts and CNA Insurance Co. are ordered to pay compensation at the rate of $103.97 from June 30, 1973, to the date of hearing and until the further order of the Bureau. Section 545 does not apply to this award.”

On the basis of this order, plaintiff was entitled to total benefits of $163.01 per week. McGuire now appeals by leave granted challenging the appeal board’s opinion.

McGuire first contends the appeal board erred in ordering concurrent compensation awards to be paid in that plaintiff cannot suffer two losses of his wage earning capacity. We disagree. An employee may establish two separate wage earning capacities and be compensated for injuries sustained in each capacity at the same time.

"The fact that in 1927 plaintiff, engaged in skilled employment, suffered an accidental injury which totally destroyed his earning capacity in the employment in which he was working at the time of the accident does not preclude him from recovering compensation for total disability arising from an accident in another kind of employment in which he was engaged under the act as it now stands.” Hebert v Ford Motor Co, 285 Mich 607, 613-614; 281 NW 374 (1938).

Such is the case in the instant matter. Plaintiff was disabled from his skilled position at Lakey due to the lung ailment he contracted there. He later assumed an unskilled position at McGuire and worked there until he suffered the hernia injury. Hence, he reestablished a wage earning capacity as an unskilled worker. See Tidey v Riverside Foundry & Galvanizing Co, 7 Mich App 40, 49; 151 NW2d 198 (1967).

Accordingly, we find no error in respect to this issue.

McGuire next contends that the aggregate total of the two awards ($163.01) exceeds the statutory maximum. We agree. The awards must be reduced to comply with the legislative mandate of MCL 418.351; MSA 17.237(351), MCL 418.361; MSA 17.237(361), and MCL 418.371(1); MSA 17.237(371)(1).

Having concluded that plaintiffs awards must be reduced to the 1973 statutory limit of $111, we are now faced with the task of determining how much each defendant must contribute towards this amount.

Our research has failed to produce any cases from this jurisdiction that deal with concurrent compensation awards which exceed the statutory maximum.

To arrive at an equitable result in the instant case, we believe that it is necessary to take the maximum liability each employer was ordered to pay and discount these amounts equally so that their sum totals equal the statutory maximum of $111 per week.

Accordingly, Lakey is ordered to pay $53.29 per week and McGuire is ordered to pay $57.71 per week to plaintiff in accordance with GCR 1963, 820.1(1).

We note that the decision reached herein is restricted to the unique facts presented in this case.

Reversed and remanded for entry of an order not inconsistent with this opinion. No costs, neither party having prevailed in full.

       Lakey Foundry Corporation became bankrupt in 1972 and the Self-Insurers’ Security Fund assumed responsibility for workmen’s compensation claims arising against Lakey Foundry.

       The hernia could not be repaired via surgical procedures in that plaintiff's lung disease prevented the use of anesthesia. Hence, in essence Lakey is in part responsible for the severity of plaintiffs second injury.

       As noted earlier, the two disabilities are separate and distinct injuries and therefore the apportionment statute does not apply. MCL 418.535; MSA 17.237(535).
      Also, the statute would not apply in that plaintiffs second injury was not a disease as defined by the act. See Derwinski v Eureka Tire Co, 79 Mich App 750; 263 NW2d 30 (1977).

       $96 (Lakey’s maximum award per week) plus $103.97 (McGuire’s maximum award per week) equals $199.97. $111 divided by $199.97 equals .5550832, the reduction fraction. Hence, Lakey’s liability equals $96 times .5550832 or $53.29 and McGuire’s liability equals $103.97 times .5550832 or $57.71.


author: H. E. Deming, J.

text:
    COLLISON v CITY OF SAGINAW
    Docket No. 77-3747.
    Submitted May 9, 1978, at Lansing.
    Decided June 20, 1978,
    Leave to appeal applied for.
    Frank R. Collison suffered a back injury when he was thrown from a toboggan slide constructed and maintained in a city park by the City of Saginaw. Mr. Collison and Mary E. Collison, his wife, commenced an action for damages for personal injuries and for loss of consortium and services against the City of Saginaw. Accelerated judgment was granted in favor of the defendant, Saginaw Circuit Court, Eugene Snow Huff, J., on the basis of governmental immunity. Plaintiffs appeal. Held:

    The operation of the city park was a governmental function subject to immunity from tort liability for negligence. Also, the toboggan run was not a nuisance per se and thus not within a "nuisance per se” exception to the governmental immunity statute, if such an exception does exist.
    Affirmed.
    1. Torts — Governmental Immunity — Governmental Function— Case-by-Case Determination — Statutes.
    The statute which provides, with certain exceptions, immunity from tort liability for all governmental agencies in the exercise of a "governmental function” does not define governmental function; therefore, the determination of whether a given activity is a governmental function must be made on a case-by-case basis utilizing prior common-law definitions when they apply (MCL 691.1407; MSA 3.996[107]).
    2. Municipal Corporations — Governmental Function — Recreational Park — Toboggan Slide.-
    The operation of a city recreational park is a governmental function, although particular activities carried on within a recreational park may or may not be governmental functions; the operation of a toboggan slide in a city recreational- park was a governmental function where the operation of the toboggan slide was an integral part of the park and was not in competition with privately operated slides, depended on the park for its own existence, and the park and the slide were open to the general public free of charge and thus the general public was benefited without hope of monetary profit for the city.

      References for Points in Headnotes
    [1-4] 16 Am Jur 2d, Constitutional Law § 527.
    56 Am Jur 2d, Municipal Corporations, Counties, and other Political Subdivisions §§ 27, 102.
    57 Am Jur 2d, Municipal School and State Tort Liability § 27 et seq.

    59 Am Jur 2d, Parks, Squares, and Playgrounds § 38 et seq.

    58 Am Jur 2d, Nuisances §§ 12, 13, 55.
    [5] 58 Am Jur 2d, Nuisances §§ 12, 13.

      3. Torts — Governmental Immunity — Statutes.
    Governmental immunity from tort liability is now provided by statute; common-law governmental immunity no longer exists in Michigan (MCL 691.1407; MSA 3.996[107]).
    4. Municipal Corporations — City Park — Nuisance Per Se — Governmental Immunity — Exceptions.
    Existence of a nuisance per se within a city park does not by itself create an exception to statutory governmental immunity.
    5. Nuisance — Nuisance Per Se — Question of Law.
    The existence of a nuisance per se is a question of law.

      Collison & Chasnis, for plaintiff.

      W. Vincent Nash, City Attorney, and Otto W. Brandt, Jr., Assistant Attorney General, for defendant.
    Before: Beasley, P. J., and Allen and H. E. Deming, JJ.

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

   H. E. Deming, J.

Plaintiff, Frank Collison, brought this suit against defendant City of Saginaw claiming that on January 22, 1977, he had suffered a back injury as a result of being thrown from a toboggan slide negligently constructed and maintained by defendant within a city park. On September 21, 1977, the circuit court granted accelerated judgment in favor of defendant based on governmental immunity. Plaintiffs appeal raising two issues.

Plaintiffs first contend that the operation of this toboggan slide was not a governmental function. With certain exceptions, the governmental immunity statute, MCL 691.1407; MSA 3.996(107), provides immunity from tort liability, for all governmental agencies in the exercise of "a governmental function”. The statute does not define "governmental function”. Therefore, the determination of whether a given activity is a governmental function must be made on a case-by-case basis utilizing prior common-law definitions when they apply. Thomas v Dep’t of State Highways, 398 Mich 1; 247 NW2d 530 (1976). In Michigan the operation of a recreational park is a governmental function. Royston v City of Charlotte, 278 Mich 255, 257-258; 270 NW 288 (1936). Particular activities carried on within a recreational park may or may not be governmental functions. Plaintiffs rely on Rohrabaugh v Huron-Clinton Metropolitan Authority Corp, 75 Mich App 677; 256 NW2d 240 (1977), wherein the operation of a roller skating rink within a city park was held not to constitute a governmental function. In Rohrabaugh, the skating rink was in competition with private business and an admission fee was charged. Applying the rationale of Rohrabaugh to the instant case we find that the operation of the toboggan slide was an integral part of the recreational park which was not shown to be in competition with privately operated slides, and which depended on the existence of the park for its own existence. Therefore, under Rohrabaugh, the operation of the toboggan slide in the instant case was a governmental function. We also note that the park and the slide were open to the general public free of charge. Thus the general public was benefited without hope of monetary profit for the city. This adds further support to our finding a governmental function in the instant case. See Snow v Freeman, 55 Mich App 84, 88-89; 222 NW2d 43 (1974), and Smith v Board of Comm’rs of the Huron-Clinton Metropolitan Authority, 49 Mich App 280; 212 NW2d 32 (1973).

Plaintiffs second contention is that this toboggan slide was a nuisance per se and thus constituted an exception to governmental immunity and that the trial court erred in "ruling as a matter of law that no genuine issue of material fact existed as to the creation of a nuisance per se”. This argument has no merit.

The nuisance per se exception to govérnmental immunity was a common-law exception to common-law governmental immunity. Royston, supra, at 260. Common-law governmental immunity no longer exists in Michigan. Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961). Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976). Governmental immunity is now provided by statute. Several statutory exceptions have been created but none apply in the instant case. Judicially created exceptions also exist. Buckeye Union Fire Ins. Co v Michigan, 383 Mich 630; 178 NW2d 476 (1970). No judicially created exceptions to statutory governmental immunity apply in the instant case. Existence of a nuisance per se within the city park does not by itself create an exception to statutory governmental immunity. Dionne v City of Trenton, 79 Mich App 239, 242-243; 261 NW2d 273 (1977).

We also note that the existence of a nuisance per se is a question of law. In Buddy v Dep’t of Natural Resources, 59 Mich App 598, 599-602; 229 NW2d 865 (1975), Judge M. J. Kelly presents an excellent analysis leading to the conclusion that a toboggan run is not a nuisance per se. Plaintiffs fail to point out any error in the Buddy analysis. Therefore, even if there was a "nuisance per se” exception, plaintiffs have shown no error in the instant case.

Affirmed. No costs, a public question being involved.


author: Per Curiam.

text:
    MONFILS v CITY OF STERLING HEIGHTS
    Docket No. 77-1358.
    Submitted March 15, 1978, at Detroit.
    Decided June 20, 1978.
    Leonard Monfils, for himself and as next friend of Michael J. Monfils, a minor, brought an action for damages against the City of Sterling Heights and the Warren Consolidated School District. Michael Monfils was injured while playing among some piles of sand which had been placed on a school playground pursuant to a contract between the school district and the city as part of a project to rebuild the baseball diamonds located on the playground. The Macomb Circuit Court, Raymond R. Cashen, J., granted the city’s motion for accelerated judgment and the school district’s motion for summary judgment, both on the basis of governmental immunity. Plaintiff appeals, claiming that the trial judge erred by ruling that an adjacent playground is not a part of a school building, that the maintenance, repair or reconstruction of a school playground is not a governmental function, and that application of statutory governmental immunity denied plaintiff equal protection of the law. Held:

    1. For purposes of a governmental liability statute, a school playground adjacent to a school building is a part of the building.
    2. The maintenance, repair, or reconstruction of a school playground is a governmental function for purposes of the governmental immunity statute.
    3. Application of statutory governmental immunity does not deny the plaintiff equal protection under the law.
    Reversed and remanded.
    1. Statutes — Governmental Liability — Public Buildings — Environs — School Playgrounds.
    The definition of "public building” in a statute which provides for governmental liability for injury or property damage resulting from a dangerous or defective condition of a public building includes not only that which one normally regards as a building but also the immediate outside physical environs owned, controlled, and considered a necessary part of the essential governmental function of the building; a school playground, therefore, is a part of a school building for purposes of the statute (MCL 691.1406; MSA 3.996[106]).

      References for Points in Headnotes
    [1] 57 Am Jur 2d, Municipal, School, and State Tort Liability §§ ISO-155.
    '[2, 4] 57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 27-41, 155.
    [3] 57 Am Jur 2d, Municipal, School, and State Tort Liability § 27 et seq.

      2. Statutes — Governmental Immunity — Governmental Function —School Playgrounds.
    The maintenance, repair, or reconstruction of a school playground is a governmental function within the meaning of the governmental immunity statute (MCL 691.1407; MSA 3.996[107]).
    3. Statutes — Governmental Immunity — Governmental Function —Test.
    The test of whether or not an activity is a governmental function for purposes of the governmental immunity statute is whether the activity is for the common good of all without the element of special corporate benefit or pecuniary profit.
    4. Constitutional Law — Equal Protection — Governmental Immunity.
    A plaintiff parent of a minor injured while playing on a school playground is not denied equal protection of the law by application of statutory governmental immunity.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pederson (by John P. Jacobs and Dennis M. Powers), for plaintiff.

      Hibbs, Lewis & Golden, P. C. (by Walter Bieber), for defendant City of Sterling Heights.

      Seavitt, Westcott, Miller, Stowe & Magnuson, for defendant Warren Consolidated School District.
    Before: D. C. Riley, P. J., and V. J. Brennan and N. J. Kaufman, JJ.
   Per Curiam.

This is an appeal by plaintiff from an adverse ruling on defendant City of Sterling Heights’ motion for accelerated judgment based on the defense of governmental immunity and an adverse ruling on a motion for summary judgment by defendant Warren Consolidated School District based on the same ground.

The Warren Consolidated School District decided to rebuild the baseball diamonds which were located on school grounds in the fall of 1973. In the case of Haiteme Elementary School, defendant district contracted with defendant city to have the work done. Pursuant to this agreement, several loads of sand were dumped on the Haiteme site. Michael Monfils was struck by a "dirt rock” thrown by another child while playing among the piles of sand, which were not fenced in or otherwise rendered inaccessible to children. Michael suffered the permanent loss of sight in his right eye as a result of the injury.

It should be noted that previous to the injury, there were complaints to defendants by parents of children playing on the school grounds concerning the dirt piles and the resultant "dirt fights”.

Plaintiff raises three questions on appeal. He first claims that the trial court misconstrued MCL 691.1406; MSA 3.996(106), by ruling that an adjacent playground is not part of a school building, thereby holding that the exceptions to the governmental immunity doctrine cited in the statute did not apply.

We cannot fault the trial court’s ruling, cognizant as we are that the trial court in this case was bound by the majority opinion in Pichette v Manistique Public Schools, 50 Mich App 770; 213 NW2d 784 (1973). Hackett v Ferndale City Clerk, 1 Mich App 6; 133 NW2d 221 (1965).

However, this panel is not required to follow the majority opinion and we choose to follow Judge Holbrook’s scholarly dissenting opinion. For purposes of this case, we may analogize to Judge Holbrook’s conclusion that:

"The school playground area to which the slide was permanently affixed is within the same power of control of school officials and the school maintenance staff as is the school building itself. Furthermore, the presumed rationale behind excluding public buildings from the blanket protection of the defense of governmental immunity, i.e., because public buildings, like public highways, are open to the public and used so often that the public has a right to expect to be safe when using them, applies equally to much-used playgrounds adjacent to public schools. The reasons enunciated in part III of this opinion that allegedly serve as a rationale for the continuing validity of the defense of governmental immunity simply do not bear a reasonable relationship to the classification of victims pursuant to the statutory scheme prescribed for governmental immunity. On its face, therefore, the immunity statute questioned here appears to be constitutionally infirm on equal protection grounds. Jones [v Bouza, 7 Mich App 561; 152 NW2d 393 (1967)], supra; Weber [v Aetna Casualty & Surety Co, 406 US 164; 92 S Ct 1400; 31 L Ed 2d 768(1972)], supra. However, whenever possible courts are bound to construe statutes so as to give them validity and reasonable operation, rather than hold them unconstitutional. Evans Products Co v State Board of Escheats, 307 Mich 506; 12 NW2d 448 (1943). Accordingly, in order to save the constitutionality of the statute this writer would expand the definition of 'public building’ in MCLA 691.1406; MSA 3.996(106) to include not only that which one normally regards as a building, but also the immediate outside physical environs owned, controlled, and considered a necessary part of the essential governmental function of the building. See contra, Cody v Southfield-Lathrup School District, 25 Mich App 33; 181 NW2d 81 (1970). Thus, school playgrounds would be part of 'school buildings’, since there is little doubt that school playgrounds are essential to the governmental function of education for which a school building is used.” 50 Mich App at 784-785.

We acknowledge that Thomas v Dep’t of State Highways, 398 Mich 1; 247 NW2d 530 (1976), answered "the constitutional questions that troubled Judge Holbrook”. Stanton v Garfield Twp, 75 Mich App 537, 539; 255 NW2d 675 (1977). However, our adherence to Judge Holbrook’s opinion is based on considerations of common sense. Therefore, this case must be reversed and remanded to the trial court permitting plaintiff to proceed with his case.

Plaintiff also contends that the maintenance, repair, or reconstruction of a school playground is not a governmental function as that phrase is used in MCL 691.1407; MSA 3.996(107). We must disagree. In McCann v Michigan, 398 Mich 65, 79; 247 NW2d 521 (1976), Justice Ryan distinguished "governmental” from "proprietary” functions:

"The Legislature has defined 'proprietary function’, MCLA 691.1413; MSA 3.996(113):
" 'Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees.’
"The definition of 'governmental function’ most frequently cited by Michigan courts is found in Gunther v Cheboygan County Road Comm’rs, 225 Mich 619; 196 NW 386 (1923). Therein, this Court approved the following formulation of the test from Bolster v City of Lawrence, 225 Mass 387; 114 NE 722 (1912):
" 'The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability; if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.’ ”

In rebuilding the baseball diamonds on the school grounds in question, the act was for the common good of the public and was not conducted primarily for the purpose of producing a corporate benefit or pecuniary profit. Furthermore, in Pichette, supra, this Court found that the maintenance of the school playground involved in that case was a governmental function. If the maintenance of a schbol playground is a governmental function, then reconstruction of part of a school playground is also a governmental function.

Finally, plaintiff argues that the application of statutory governmental immunity denies plaintiff equal protection under law. As noted earlier, this question was decided by the Supreme Court adversely to plaintiff in Thomas v Dep’t of State Highways, supra. We are bound by that decision. Cf. Hackett v Ferndale City Clerk, supra.

Reversed and remanded.


author: Per Curiam. M. J. Kelly, P. J.

text:
    PARISH v MERTES
    Docket No. 77-1588.
    Submitted February 9, 1978, at Detroit.
    Decided June 20, 1978.
    Multiple long-distance telephone calls between the office of Arthur Mertes in Illinois and the home of Mary J. Parish in Michigan resulted in a loan agreement, dictated in Michigan, typed in Illinois and signed by Arthur and Kathleen Mertes in Illinois. The note was made payable in Detroit. Mrs. Parish sued Arthur and Kathleen Mertes and the Wayne Circuit Court, Thomas Roumell, J., granted a summary judgment to plaintiff. Defendants appeal raising several issues. Held:

    1. Michigan courts, under the long-arm statute, may obtain limited personal jurisdiction over nonresident defendants who undertake actions over which they can expect the Michigan courts to assert jurisdiction; use of the telephone to negotiate a loan with Michigan residents, which loan is payable in Michigan, constitutes such actions.
    2. A loan agreement is not invalid for lack of consideration, as being a sham transaction or for false representations where it was made to allow the maker’s employer to stay in business, it was to be repaid from one of the employer’s accounts receivable, it was agreed that the maker would not be liable on the note but would turn over the proceeds from the account receivable when it was received, and payment of the account was received by the employer and was given to the maker, who retained possession of it.
    Affirmed.
    M. J. Kelly, P. J., concurred in the result reached by the majority for the reason that the note was payable in Michigan, but would hold that the negotiation of the loan agreement by long-distance phone calls with a Michigan resident, by itself, is insufficient to grant Michigan courts jurisdiction of nonresidents upder the long-arm statute.
    References for Points in Headnotes
    [1, 2, 4] 20 Am Jur 2d, Courts, §§ 123, 172 et seq.

    [3] 17 Am Jur 2d, Contracts, §§ 4, 104, 105, 397.

      Opinion of the Court
    1. Courts — Constitutional Law — Statutes—Jurisdiction Over Nonresidents.
    State court jurisdiction can be constitutionally asserted over a nonresident defendant under a long-arm statute in situations where the defendant undertook an action such that he can expect the courts of another state to assert jurisdiction (US Const, Am XIV, MCL 600.705[1]; MSA 27A.705[1]).
    2. Courts — Jurisdiction Over Nonresidents — Promissory Notes.
    Michigan courts may properly assert jurisdiction over a nonresident maker of a loan agreement and promissory note where the note is payable in Michigan and several long-distance telephone calls between the Michigan payee and the nonresident debtor or his agent were made to negotiate the loan agreement.
    3. Contracts — Loan Agreements — Promissory Notes — Defenses— Lack of Consideration — Sham Transaction — False Representation.
    A loan agreement is not invalid for lack of consideration, as a sham transaction or for false representations where it was made to allow the maker’s employer to stay in business, it was to be repaid from one of the employer’s accounts receivable, it was agreed that the maker would not be liable on the note but would turn over the proceeds from the account receivable when it was paid, and payment of the account was received by the employer and was given to the maker, who retained possession of it.
    Concurrence in Part, Dissent in Part by M. J. Kelly, P. J.
    4. Courts — Jurisdiction—Jurisdiction Over Nonresidents.

      To gain personal jurisdiction over a nonresident party, the party must be involved in some purposeful activity within the state, and mere use of the telephone from outside the state for consummating a contract cannot be considered as purposefully availing one’s self of the privilege of conducting activities within the forum state.

      Ronald F. Parish, for plaintiff.

      Gottlieb & Goren, P. C., for defendants.
    Before: M. J. Kelly, P. J., and T. M. Burns and R. M. Maher, JJ.
   Per Curiam.

Plaintiff sued upon a 30-day promissory note dated December 19, 1974, in the face amount of $5,924.44 at 8% interest. Defendants filed a special appearance and made a motion for accelerated judgment claiming lack of jurisdiction. Defendants were Illinois residents and were served in that state. After reviewing affidavits provided by the parties, the trial judge, on June 26, 1975, denied the motion for accelerated judgment and, on April 15, 1977, granted plaintiff’s motion for summary judgment.

The loan in question was for an Illinois corporation, Controelectric, Inc. Defendants, in their original affidavit, stated that the note was negotiated, drafted, executed and witnessed in Illinois; that the money was delivered in Illinois; and that defendants never came to Michigan in connection with the transaction. Defendants also averred that it was understood by the parties that the transaction was intended to be a capital contribution, that the defendants agreed to be "straw parties” in order to conceal it and that all agreed defendants were not personally liable.

Plaintiff responded in her affidavit that multiple long-distance calls were made between defendant Arthur Mertes’ office and plaintiff’s home during which an oral contract was reached between the parties; that the agreement was dictated by plaintiff in Michigan to her husband, which he typed in Illinois; that the loan agreement and note were signed in Michigan by the plaintiff and in Illinois by the defendants; that the check was drawn on a Michigan bank, payment was due at plaintiff’s home in Detroit and plaintiff had the option of demanding collateral held in Illinois.

Defendants answered with a final affidavit claiming: defendants are residents of Illinois and were served there; the check referred to in plaintiffs affidavit was made out to plaintiffs husband and was cashed by him; from the proceeds, plaintiffs husband obtained four cashier’s checks which were made out to creditors of Controelectric; the defendants received no monies from the check sent by plaintiff; plaintiffs husband typed the papers in Illinois and defendants had no knowledge that plaintiff signed the loan agreement; and, finally, defendants had no direct telephone conversations with plaintiff involving this alleged transaction.

Plaintiff claims jurisdiction over defendants on the basis of MCL 600.705(1); MSA 27A.705(1).

"Sec. 705. The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of the act which creates any of the following relationships:
"(1) The transaction of any business within the state.”

The statute has been construed as extending the state’s jurisdiction to the farthest limits permitted by due process. Sifers v Horen, 385 Mich 195; 188 NW2d 623 (1971). Due process requires that a defendant have certain minimal contacts with the state so that the suit does not offend the traditional notions of fair play. International Shoe Co v Washington, 326 US 310; 66 S Ct 154; 90 L Ed 95 (1945), Keefer v May, 46 Mich App 566; 208 NW2d 539 (1973).

A single transaction may be sufficient to meet the "minimum contacts” test of International Shoe. Shepler v Korkut, 33 Mich App 411; 190 NW2d 281 (1971). The word "any” in MCL 600.705(1) means, according to the Supreme Court in Sifers v Horen, supra, just what it says. It includes each and every. It comprehends the slightest. 385 Mich at 199, n 2.

In McGee v International Life Ins Co, 355 US 220; 78 S Ct 199; 2 L Ed 2d 223 (1957), the Supreme Court approved the previous International Shoe jurisdictional test and explained the expansion of the permissible scope of state jurisdiction by calling attention to thé fundamental transformation of our national economy over the years and the expansion of modern transportation and communication, thus making it much less burdensome for the nonresident defendant to resist a plaintiff’s claim. See also Woods v Edgewater Amusement Park, 381 Mich 559; 165 NW2d 12 (1969).

Further elucidation of the minimum contacts— fair play standard of International Shoe is found in Gray v American Radiator & Standard Sanitary Corp, 22 Ill 2d 432, 440-441; 176 NE2d 761 (1961).

"[T]he trend in defining due process of law is away from the emphasis on territorial limitations and toward emphasis on providing adequate notice and opportunity to be heard”.

Gray, then, amplifies the fair play standard of the International Shoe test. The standard in Gray is essentially based upon the expectations of the parties. When a defendant undertakes an action such that she or he can expect the courts of another state to assert jurisdiction, that jurisdiction can be constitutionally asserted. See, Commentary: Long-Arm and Quasi in Rem Jurisdiction and the Fundamental Test of Fairness, 69 Mich L Rev 300, 313 (1970). The standards of Interna tional Shoe, McGee and Gray must be viewed each with reference to the other. The expectation standard of Gray evolves naturally from the minimum contacts standard of International Shoe.

We do not merely count contacts. Contacts are not to be measured quantitatively; they must be measured qualitatively. Hadad v Lewis, 382 F Supp 1365 (ED Mich, 1974). In so examining the nonresident defendants’ contacts with the state of Michigan, we find a sufficient basis on which jurisdiction can be asserted over the defendants, mindful that there need be but a single act to find sufficient minimal contacts. Crane v Rothring, 27 Mich App 189; 183 NW2d 434 (1970), Kiefer v May, supra.

Plaintiffs affidavit cites several phone calls between her home in Michigan and defendants’ office in Illinois. Plaintiff claims she spoke to Arthur Mertes, but he denies it. Nevertheless it is clear that the phone calls were made and dealt with the loan agreement and promissory note and that plaintiffs husband, in Illinois with the defendants, was acting as an intermediary between plaintiff and defendants. The telephone was the means of communication between the parties. That defendant Arthur Mertes denies he was a party to such conversations is secondary to the fact that they were made, that they were relayed through an intermediary from the Michigan plaintiff to Illinois defendants and that they concerned the loan transaction. Defendants’ attempt to escape jurisdiction by denying they put telephone to ear, given the facts and circumstances of 'this case, is simplistic. It is an affront to the Supreme Court’s language in McGee v International Life Ins Co, supra, regarding the expansion of modern means of communication.

Furthermore, the loan agreement and the promissory note state that the place of payment was at plaintiffs home in Detroit, Michigan. Together with the telephone calls, this contact, looked at qualitatively if not quantitatively, is sufficient to confer jurisdiction over defendants on Michigan courts. Defendants signed the agreement and the promissory note knowing the place of payment was Michigan. They should reasonably have expected that they would be subject to jurisdiction in Michigan as long as adequate notice and the opportunity to be heard were provided. See Gray v American Radiator & Standard Sanitary Corp, supra. Defendants should not have been startled that a Michigan court saw fit to assert jurisdiction over them. Fair play permits this state’s courts to assert such jurisdiction.

We find defendants’ two remaining claims of error to be without merit. Contrary to defendants’ contention, the trial court did not grant summary judgment based solely on defendants’ depositions. The court explicitly stated it reviewed the files and the records, including the pleadings and the evidence, in addition to defendants’ depositions. This is what is mandated by GCR 1963, 117.3. The mandate was fulfilled.

Nor did the trial court err in finding there were no errors of material fact. Defendants raised several defenses in their answer and affirmative defenses, including lack of consideration, sham transaction, and false representations.

Defendants claim that the transaction was really a capital contribution by plaintiff’s husband, a shareholder of Controelectric, that was disguised to appear to be a loan by the use of the defendants as straw parties. The loan amount was that needed to allow Controelectric to stay in business. The loan was to be repaid from an account receivable from Anheuser-Busch. Anheuser-Busch did send a check to Controelectric which was turned over to defendant Arthur Mertes. That check was still in his possession. At the time of the transaction, it was understood that the defendants would not be liable on the note, but that they would turn over the check from Anheuser-Busch when it came in.

Defendants cannot claim that there was no consideration. As an employee of Controelectric, the corporation for which the loan was intended, Arthur Mertes benefited by continuing to draw his salary. Mertes was also interested in investing in the corporation once the books showed a favorable outlook.

Nor was there a fraud or sham transaction. Neither defendant was being defrauded. They read, understood, and agreed to a loan agreement and a promissory note. They knew what the transaction entailed.

Finally, defendants cannot complain about false representations. While it is true they were told they would not be held liable on the note if they turned over the check from Anheuser-Busch, the account receivable was never turned over to plaintiff. Defendants did not fulfill their part of the bargain and their failure prohibits them from complaining now.

Affirmed.

M. J. Kelly, P. J.

(concurring in part, dissenting in part). I write only to further examine the telephone transaction aspect addressed by the majority. It is my belief that if all defendants had done was to communicate by means of the telephone, either by receipt of interstate calls or by initiating such calls in negotiating this loan, they would not ipso facto have become subject to in personam jurisdiction in this state.

The telephone conversations aspect of expanding jurisdiction in McGee v International Life Ins Co, 355 US 220; 78 S Ct 199; 2 L Ed 2d 223 (1957), was examined by the Second Circuit Court of Appeals in Agrashell, Inc v Bernard Sirotta Co, 344 F2d 583 (CA 2, 1965), which distinguished McGee when confronted with an issue similar to the issue at bar.

In Agrashell, defendants, residents of New York, bought walnut shells from the third-party defendant, Hammons Products Company, a Missouri corporation. When defendants resold the goods, plaintiff, a Delaware corporation, brought suit alleging that defendant had infringed plaintiffs patent rights. Defendants impleaded Hammons Company as a third-party defendant, alleging that it had warranted the fitness of the goods for resale and had agreed to indemnify defendants against a patent infringement suit. Hammons Company was served in Missouri. Hammons Company moved to dismiss the third-party complaint on the ground that it was not personally subject to the jurisdiction of the court. The Agrashell court stated:

"We fail to see in what material respect Hammons invoked the benefits and protections of New York law merely by negotiating and concluding goods contracts through the mails and by telephone with persons residing in New York. Other courts, construing similar state laws in like cases, have also found that these contacts are insufficient to give personal jurisdiction over the foreign corporation. Growbark v Addo Mach Co., 16 Ill2d 426, 158 N.E.2d 73 (1959); Erlanger Mills, Inc. v. Cohoes Fibre Mills, Inc., 239 F.2d 502 (4 Cir. 1956).” (Emphasis supplied.) 344 F2d at 587.

The court went on to distinguish McGee v International Life Insurance Co, supra, stating:

"[Defendant] relies heavily on McGee v International Life Ins Co., supra. There are certain resemblances between that case and ours. In McGee, California was allowed to exercise personal jurisdiction over a Texas corporation based on a single contract insuring the life of a California resident. Here, [defendant] asks us, in effect, to allow New York to exercise personal jurisdiction over a Missouri corporation based in part on a contract indemnifying New York residents against loss. However, the differences between the cases are even more significant than their resemblances. In McGee, the Supreme Court was concerned with 'an activity that the State treats as exceptional and subjects to special regulation.’ Hanson v Denckla, supra, at 252, 78 S.Ct. at 1239. Moreover, the Supreme Court emphasized the fact that because many life insurance claims are small or moderate, 'individual claimants frequently could not afford the cost of bringing an action in a foreign forum —thus in effect making the company judgment proof.’ McGee v International Life Ins. Co., supra, at 223, 78 S.Ct. at 201. Neither of these remarks would seem to apply to contracts of indemnity against patent infringement suits. Accordingly, while we do not by any means regard these contacts as irrelevant to the question of personal jurisdiction, we hold that something more is needed to sustain the service of process on Hammons in Missouri.” 344 F2d at 588.

The Agrashell rationale seems applicable to the instant facts.

Furthermore, this Court’s decision in Kiefer v May, 46 Mich App 566; 208 NW2d 539 (1973), which suggests that in personam jurisdiction is properly found when the telephone and mails are utilized to consummate a contract, is also distinguishable. In Kiefer, supra, defendant, a resident of Arizona, purposely elicited business opportunities through a national advertising campaign for the sale of a 1931 Cadillac. The defendant in Kiefer was also subject to possible tort liability, aside from breach of contract. See Norton v Local Loan, 251 NW2d 520 (Iowa, 1977), cited in Aaron Ferer & Sons Co v Atlas Scrap Iron & Metal Co, 558 F2d 450, 455, n 7 (CA 8, 1977). See, generally, Cole v Doe, 77 Mich App 138, 142; 258 NW2d 165 (1977).

To gain personal jurisdiction over a party, the party must be involved in some purposeful activity within the state. Hanson v Denckla, 357 US 235; 78 S Ct 1228; 2 L Ed 2d 1283 (1958). The mere use of the telephone from out of state for consummating a contract cannot be considered as purposefully availing one’s self of the privilege of conducting activities within the forum state. Agrashell Inc v Bernard Sirotta Co, supra, Arthur, Ross & Peters v Housing Inc, 508 F2d 562 (CA 5, 1975). The telephone is a quick, convenient means to consummate a bargain without having to travel to another state. Modern communication as a means of facilitating commerce should not be hindered by an automatic submission to the personal jurisdiction of a state to which the communication has been directed.

I would hold, in accordance with a number of other jurisdictions, that the mere use of the telephone is not sufficient to give personal jurisdiction over a party in a lawsuit. See Aaron Ferer & Sons Co v Diversified Metals Corp, 564 F2d 1211 (CA 8, 1977), Aaron Ferer & Sons Co v Atlas Scrap Iron & Metal Co, supra, Peterson v Crown Financial Corp, 435 F Supp 901 (Neb, 1977), Arthur, Ross & Peters v Housing, Inc, supra, Agrashell, Inc v Bernard Sirotta Co, supra, American Steel, Inc v Cascade Steel Rolling Mills, Inc, 425 F Supp 301 (SD Tex, 1975), Hamilton Brothers, Inc v Peterson, 445 F2d 1334 (CA 5, 1971). See, generally, Anno: Construction and Application, as to Isolated Acts or Transactions, of State Statutes or Rules of Court Predicating In Personam Jurisdiction Over Nonresidents or Foreign Corporations Upon the Doing of an Act, or Upon Doing or Transacting Business or "Any” Business, Within the State, 27 ALR3d 397, §§ 8, 9[c], 10, 17[b, c], 21[b], 23, 29, 34, 35, pp 437-440, 449-457, 471-492, 508-512, 517-520, 542-544, 554-557 (jurisdiction over nonresident, telephone calls into state, effect).

I concur in the result reached by the majority only because the loan agreement and the promissory note provide that the place of payment was at plaintiff’s home in Detroit, Michigan. I agree that this factor, in the context of this entire transaction, constitutes a sufficient minimum contact to confer jurisdiction over the defendants.

       “While no one of these factors is alone determinative, there is lacking in these cases any contact between an appellee corporation and the State of Nebraska sufficient to satisfy due process. The letters and telephone calls in this purely commercial setting did not supply the necessary minimal contact. See Benjamin v. Western Boat Building Corp., 472 F.2d 723, 729-30 (5th Cir.), cert. denied, 414 U.S. 830, 94 S.Ct. 60, 38 L.Ed.2d 64 (1973); Hamilton Brothers, Inc. v. Peterson, 445 F.2d 1334, 1336 (5th Cir. 1971); Smith v Piper Aircraft Corp., 425 F.2d 823, 825 (5th Cir. 1970); Scheidt v. Young, 389 F.2d 58, 60 (3d Cir. 1968); Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 587 (2d Cir. 1965). See also Arthur, Ross & Peters v. Housing, Inc., 508 F.2d 562, 564-65 (5th Cir. 1975); American Steel, Inc. v. Cascade Steel Rolling Mills, Inc., 425 F.Supp. 301, 303 (S.D.Tex. 1975), aff’d, 548 F.2d 620 (5th Cir. 1977).” (Footnote omitted.)

      . "The recent decision in Norton v. Local Loan, 251 N.W.2d 520 (Iowa 1977), to which appellant directed our attention subsequent to oral argument, is readily distinguishable. There, in the context of a tort suit, the Iowa Supreme Court held that a telephone call from the defendant’s agent in Nebraska to the plaintiff in Iowa constituted 'conduct in [the] state’ sufficient for Iowa to exercise personal jurisdiction over the defendant. Not only did the cause of action and the damages alleged arise directly from the telephone call, but tort cases involve interests of the state not present in contract cases. See Fulghum Industries, Inc. v. Walterboro Forest Products, Inc., 477 F.2d 910, 912 (5th Cir. 1973). Nebraska’s long-arm statute also provides for jurisdictional differences between tort and contract actions. See Neb. Rev. Stat. § 25-536, supra note 4.”


text:
    PEOPLE v BERTSCHINGER
    Docket No. 77-2340.
    Submitted March 13, 1978, at Detroit.
    Decided June 20, 1978.
    Lawrence J. Bertschinger was convicted, on his plea of guilty, of breaking and entering an occupied dwelling with intent to commit larceny, Macomb Circuit Court, Hunter D. Stair, J. Defendant was brought before the court for sentencing, along with his brother who also had been charged in the original information and who also had pled guilty to a negotiated plea. Both were given sentences of from 5 to 15 years in prison. Defendant appeals claiming that the trial court improperly imposed sentences on both the defendant and his brother by addressing them jointly rather than individually. Held:

    There was no prejudicial or reversible error in imposing sentence in the combined proceeding rather than individually.
    Affirmed.
    1. Criminal Law — Sentences—Defendant’s Background — Rehabilitative Potential.
    A sentence should be structured in relation to a defendant’s unique background and rehabilitative potential.
    2. Criminal Law — Sentences—Joint Sentencing Proceeding.
    A sentencing court’s procedure of addressing a defendant, who had pled guilty at one hearing, and his brother, who had pled guilty at another hearing, at a joint sentencing session was not prejudicial to the defendant where both had been charged in the original information and each separately and represented by independent counsel had pled guilty to negotiated pleas.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 585.
    [2] 21 Am Jur 2d, Criminal Law §§ 533, 588.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Ap~ pellate Lawyer, and Joseph G. Wetzel, Assistant Prosecuting Attorney, for the people.

      Goldstein, Raznick & Katz, P. C., for defendant on appeal.
    Before: R. M. Maher, P. J., and V. J. Brennan and N. J. Kaufman, JJ.
   Per Curiam.

Defendant Lawrence James Bertschinger appeals the guilty plea entered in Ma-comb County Circuit Court on April 6, 1977, to a charge of breaking and entering an occupied dwelling with intent to commit larceny, contrary to MCLA 750.110; MSA 28.305. The plea negotiated between defendant and the prosecutor involved setting the minimum sentence at 5 years and the maximum sentence at 15 years. Defendant was brought before the court for sentencing with his younger brother Timothy Daniel Bertschinger, who had been jointly charged in the original information and who had also pled guilty to a negotiated plea. Both brothers were separately represented by independent counsel. Separate presentencing reports had been compiled and given to the court. Both defendants were given sentences of from 5 to 15 years in prison. Defendant Lawrence Bertschinger appeals as of right. GCR 1963, 806.1.

Upon a careful examination of the record, we find no prejudicial or reversible error in reviewing defendant’s claim that the trial court improperly imposed sentences on both defendant and his younger brother jointly in a combined sentencing proceeding rather than individually.

We realize that the sentence itself should be structured in relation to the defendant’s unique background and rehabilitative potential. People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973), People v Snow, 386 Mich 586, 594; 194 NW2d 314 (1972). However, in this case we are not asked to review the trial court’s actual determination of sentence, only the form in which that sentence was pronounced. Given the criminal histories of the two brothers, we find the court’s procedure of addressing them jointly natural and find no prejudice to defendant in the way his sentence was pronounced. Though we find no Michigan authority directly on point, other states have confronted and resolved this question in much the same way we do now. See State v Levice, 59 Ariz 472; 130 P2d 53 (1942). In short, we find no reversible error.

Affirmed.


text:
    PEOPLE v WHITE
    Docket No. 77-2905.
    Submitted March 21, 1978, at Detroit.
    Decided June 20, 1978.
    Leave to appeal applied for.
    Louise White was charged with carrying a concealed weapon. The Recorder’s Court of Detroit, Susan D. Borman, J., found that the revolver discovered by the arresting officer in the defendant’s purse, which was the basis for the prosecution, was inadmissible in evidence because the officer’s actions were unreasonable, and dismissed the information. The people appeal by leave granted. Held:

    The action of the police officer in preventing the defendant from placing her hand in her open purse was reasonable as a protective act under the circumstances which existed at the scene. The subsequent seizure of the revolver which the officer saw in the open purse was therefore also reasonable, and the defendant’s motion to suppress the weapon as evidence should not have been granted.
    Reversed.
    1. Searches and Seizures — Reasonableness—Public Interest — Individual Rights.
    The reasonableness of an invasion of a citizens’ personal security depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.
    2. Appeal and Error — Criminal Law — Evidence—Motion to Suppress.
    The conclusion of a trial judge in ruling on a motion to suppress evidence will be reversed only where it is clearly erroneous.
    3. Searches and Seizures — Reasonableness—Evidence—Admissibility of Evidence.
    A police officer did not act unreasonably in stopping a defendant from reaching into her open purse where under the circumstances the sensible thing for the officer to do was to see if the purse contained a weapon which could be used against him; therefore, the seizure of a revolver which the officer saw in the purse was also not unreasonable and the revolver was admissible into evidence where the defendant was charged with carrying a concealed weapon.

      References for Points in Headnotes
    [1] 68 Am Jur 2d, Searches and Seizures §§ 2, 4.
    [2] 5 Am Jur 2d, Appeal and Error § 601 et seq.

    [3] 68 Am Jur 2d, Searches and Seizures §§ 92, 93.

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

      Gerald M. Lorence, P. C., for defendant on appeal.
    Before: D. C. Riley, P. J., and T. M. Burns and Cynar, JJ.
   Per Curiam.

The issue in this case is whether the handgun discovered in defendant’s purse was discovered as the result of an unreasonable search and seizure and would, therefore, be inadmissible as evidence in a prosecution for carrying a concealed weapon. MCL 750.227; MSA 28.424. The trial court held that it would be and dismissed the information. We disagree and reverse.

The United States Supreme Court recently reaffirmed the basic principles involved in this case in Pennsylvania v Mimms, 434 US 106, 108-109; 98 S Ct 330; 54 L Ed 2d 331 (1977):

"The touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ Terry v Ohio, 392 US 1, 19; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Reasonableness, of course, depends 'on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ United States v Brignoni-Ponce, 422 US 873, 878; 95 S Ct 2574; 45 L Ed 2d 607 (1975).”

The trial court decided defendant’s motion to suppress on the basis of the testimony taken at the preliminary examination. Only the arresting officer testified at that hearing. That testimony presented an unusual situation in that when the police-citizen contact was initiated defendant was not involved.

The officer testified that he and his partner were on routine patrol at 3:15 p.m. in a marked patrol car. When they passed a market at Mack and Bewick, they noticed people interfering with individuals walking on the sidewalk and interfering with people entering and exiting the market. There had been complaints about this conduct in the past. They circled the block and parked in the parking lot of the market.

The officers approached on foot and as they did, two males immediately entered a vehicle. One of the officers asked that they get out of the car and was talking to them at the time the events which led to this prosecution occurred.

Defendant had been sitting on the passenger side of the same car. She was not requested to exit the car, but did so on her own. She approached the officer with an open purse in her left hand. When defendant was two or three feet from the officer she "put her right hand up towards the top of the purse as if to go into the purse”. Defendant was told not to go into her purse and when she did not stop, the officer grabbed her hand. At that point the officer could see the .32-calibre, six shot, blue steel revolver upon which this prosecution is based.

The trial judge suppressed the pistol because she concluded the officer acted unreasonably in stopping defendant from going into her purse. We will reverse that conclusion only if it is clearly erroneous. People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977). In this case, we are convinced that a mistake has been made. Under the circumstances the only "sensible thing” for the police officer to do was to see if the purse contained a weapon which could be used against him. See, People v Robertson, 81 Mich App 446; 265 NW2d 365 (1978).

The decision to order the two males out of the car is not a question here. Defendant has no standing to raise it. She was not ordered out of the car, but rather, voluntarily injected her presence into this affair. As the circumstances developed, stopping her hand from entering her purse must be considered a protective act, justified under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). The officer was not required to allow defendant access to the purse without first checking the contents. People v Ridgeway, 74 Mich App 306; 253 NW2d 743 (1977), lv den, 401 Mich 831 (1977). Since the officer’s actions up to that point were reasonable, the subsequent seizure of the weapon after it came into his view in the open purse was not unreasonable.

The order to suppress the evidence is reversed and the proceedings against the defendant are reinstated.

Reversed.


text:
    WALLS v DIRECTOR OF INSTITUTIONAL SERVICES
    Docket No. 77-3265.
    Submitted March 14, 1978, at Lansing.
    Decided June 20, 1978.
    Reginald Walls, a juvenile, was committed to the care of the Department of Social Services after a determination of delinquency. He was subsequently brought before an administrative law judge of the Youth Parole and Review Board for a violation hearing and was ordered placed in the Maxie Boy’s Training School. Walls sought a writ of habeas corpus, naming the Director of Institutional Services, Maxie Boy’s Training School, as respondent. The Livingston Circuit Court, Bert M. Hensick, J., denied the petition. Walls appeals. Held:

    Walls, who claimed to be an indigent, was denied a fundamental constitutional right when his request to be represented by counsel at the violation hearing was denied. His confinement is therefore improper.
    Writ of habeas corpus directing the release of the petitioner ordered.
    1. Habeas Corpus — Juveniles—Statutes—Jurisdictional Defects.
    A juvenile who has been committed to the care of the Department of Social Services and subsequently placed in a juvenile correctional facility following a violation hearing is not entitled to bring an action for habeas corpus under the statute governing habeas corpus proceedings unless there was a radical jurisdictional defect in the commitment proceedings; such a defect would be an act or omission by state authorities that clearly contravenes an express legal requirement in existence at the time of the act or omission (MCL 600.4310[3]; MSA 27A.4310[3]).
    References for Points in Headnotes
    [1, 4] 47 Am Jur 2d, Juvenile Courts and Delinquent and Dependent Children §§ 60-62.
    [2] 5 Am Jur 2d, Appeal and Error § 545.
    [3, 4] 47 Am Jur 2d, Juvenile Courts and Delinquent and Dependent Children § 38.
    Right to and appointment of counsel in juvenile court proceedings. 60 ALR2d 691.

      2. Appeal and Error — Arguments Raised on Appeal.
    The Court of Appeals should not review arguments raised for the first time on appeal.
    3. Constitutional Law — Right to Counsel — Juveniles—Equal Protection — -Delinquency Proceedings.
    The rules of the Youth Parole and Review Board permit a juvenile to be represented by legal counsel at meetings of the board; while the rules make no provision for appointment of counsel, the refusal to appoint counsel to an indigent ward of the Department of Social Services when requested is a denial of equal protection; the right to counsel in delinquency proceedings extends to proceedings occurring after the original adjudication of delinquency, where the juvenile may face commitment to an institution.
    4. Habeas Corpus — Constitutional Law — Juveniles—Denial of Constitutional Rights.
    A writ of habeas corpus may be issued where a juvenile ward of the Department of Social Services has been confined to a correctional institution as a result of proceedings in which he was denied fundamental constitutional rights.

      Gary A. Colbert, for petitioner.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone, Thomas R. Wheeker, and Mark S. Meadows, Assistants Attorney General, for respondent.
    Before: Bashara, P. J., and M. J. Kelly and Allen, JJ.
   Per Curiam.

Petitioner seeks a writ of habeas corpus. He was placed in Maxie Boy’s Training School by order of the Youth Parole and Review Board, January 19, 1977, following a January 14, 1977, violation hearing before the board.

On October 31, 1977, this Court granted petitioner’s motion for immediate consideration and ordered respondent to show cause why the relief sought by petitioner should not be granted. Petitioner had sought habeas corpus before the Livingston County Circuit Court on June 27, 1977. The petition was denied.

Following varied and numerous instances of misbehavior, plaintiff was committed to the care of the Department of Social Services. He did not adjust to life in various Wayne County juvenile institutions and eventually his social worker, as a community placement, released him into the care of his uncle, and then to his mother.

Petitioner came before an administrative law judge of the Youth Parole and Review Board for a violation hearing on January 14, 1977, after he had twice been apprehended by security officers at J. L. Hudson’s store, shoplifting small kitchen appliances. At the hearing, petitioner and his mother stated that he was indigent and requested that the board appoint counsel to represent him at the hearing. His request was denied.

Initially we note that petitioner may not bring an action for habeas corpus under the statute. MCL 600.4310(3); MSA 27A.4310(3). If there is a radical jurisdictional defect in the proceedings, however, the statutory prohibition does not bar a habeas corpus action. People v Price, 23 Mich App 663, 670; 179 NW2d 177 (1970). "A radical defect in jurisdiction contemplates * * * an act or omission by state authorities that clearly contravenes an express legal requirement in existence at the time of the act or omission.” People v Price, supra, at 671. The policy behind limiting a habeas corpus proceeding is premised on the concern that such an action may be abused and substituted for normal appellate proceedings.

Respondent argues that habeas corpus is not the relief appropriate in this case. Although petitioner could have requested a rehearing or appealed the decision to the circuit court he failed to do so and habeas corpus cannot be used as a substitute for appeal. We decline to address this question because respondent did not argue before the circuit court that petitioner had no standing. This Court should not review arguments raised for the first time on appeal and we decline to do so in this case.

In his findings of fact, the administrative law judge at the violation hearing found that petitioner had been advised of certain fundamental rights, but declined to sign an "acknowledgment of receipt of rights information”. The "acknowledgment of receipt of rights information” unsigned copy is part of the record on appeal. We note with particular interest part 2 of the rights information sheet, which provides:

"You have right to:
2. Assistance and presence of parents, attorney, or other suitable representatives; or present your side of this matter yourself.”

It is clear that petitioner had a right to the assistance and presence of an attorney. Yet when he informed the board that he was indigent and requested that counsel be appointed, his request was refused. This was error.

The Youth Parole and Review Board was established to "Be responsible for approval of: releases from all youth training school facilities of the department [of social services], return to such facilities from release status, and discharge from legal delinquency commitment”. MCL 400.121; MSA 16.490(31). It is a part of the Michigan Department of Social Services.

The board’s rules permit juveniles to be represented at board meetings by legal counsel. See 1975 AACS R 400.1205(2), R 400.1226(4). The rules make no provision for appointing counsel to indigent juveniles. To refuse to appoint counsel for indigent wards under the instant circumstances while giving others the right to have counsel present is a denial of equal protection. Cf. Hawkins v Parole Board, 45 Mich App 529, 533; 206 NW2d 764 (1973), adopted, 390 Mich 569; 213 NW2d 193 (1973), Warren v Parole Board, 23 Mich App 754, 771, n32; 179 NW2d 664 (1970).

The United States Supreme Court held in In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967), that an indigent juvenile was entitled to appointed counsel in a delinquency proceeding. The Gault opinion expressly denied any application to post-adjudication disposition such as we have here. 387 US at 31, n 48. The present petitioner, although released from custody of the mother, was already a ward of the Department of Social Services and of the probate court. We hold that the right to counsel established in delinquency proceedings in In re Gault, supra, should extend to proceedings occurring after the original adjudication of delinquency, where the juvenile may face commitment to an institution.

The original exercise of jurisdiction by the state over a juvenile does not eliminate the juvenile’s right to due process of law in later proceedings. In fact, the trend in the Supreme Court is to extend to juveniles at all stages of juvenile proceedings the same protections that are given defendants in criminal proceedings. Breed v Jones, 421 US 519, 529; 95 S Ct 1779; 44 L Ed 2d 346 (1975). Cf. the right to appointed counsel in probation or parole revocation proceedings. Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973), Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), Hawkins v Parole Board, supra, Warren v Parole Board, supra.

Petitioner was a juvenile with limited capacity to read. It is unlikely that he was skilled at cross-examining witnesses or aware of his rights under the constitution and the probate code. To insure that petitioner was accorded his full right to due process of law, the state should have provided him with counsel after petitioner and his mother requested counsel. Our opinion is consistent with the Michigan Supreme Court’s recent expansion of the scope of proceedings in which due process mandates a right to counsel. See Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976).

Petitioner’s confinement is a result of proceedings in which he was denied fundamental constitutional rights. His confinement therefore is improper. A writ of habeas corpus directing the Director of Institutional Services of the Maxie Boy’s Training School to release petitioner is ordered. MCL 600.4304(2); MSA 27A.4304(2). See MCL 600.4307; MSA 27A.4307.