author: T. M. Burns, P.J.

text:
    LUCE v GEROW
    Docket No. 78-1011.
    Submitted December 8, 1978, at Grand Rapids.
    Decided April 16, 1979.
    Lawrence W. Luce and his wife Donna M. Luce brought an action against Fred M. Gerow for damages for injuries suffered in an automobile collision. Mrs. Luce suffered no physical injuries in the collision but alleged negligent infliction of emotional disturbance, claiming that she suffered an emotional shock and resulting physical symptoms from witnessing and dealing with her husband’s injuries. Mr. Luce’s injury claim and Mrs. Luce’s loss of consortium claim were settled. At trial, Mrs. Luce’s emotional injury claim was dismissed for failure to state a claim upon which relief may be granted, and summary judgment was entered in favor of the defendant, Muskegon Circuit Court, Wade Van Valkenburg, J. Mrs. Luce appeals. Held:

    Summary judgment was improper. The Legislature did not intend to exclude the possibility of recovery for mental injury resulting in physical symptoms when it enacted the no-fault automobile insurance statute. The section of the statute which retains tort liability in a case of "serious impairment of body function” is not limited to physical injuries. The fact that the mental injuries claimed resulted from witnessing her husband’s physical injuries does not affect the compensability of Mrs. Luce’s injuries, if proven.
    Reversed and remanded.
    1. Automobiles — Insurance — Liability — Statutes.
    The no-fault automobile insurance statute retains traditional tort liability if certain threshold requirements are met; the requirements are "death, serious impairment of body function or permanent serious disfigurement” (MCL 500.3135[1]; MSA 24.13135[1]).
    References for Points in Headnotes

       New Topic Service, No-Fault Insurance §§ 14, 15.

       New Topic Service, No-Fault Insurance § 26.

       75 Am Jur 2d, Trial § 363.

      2. Automobiles — Insurance — Liability —■ Physical Injuries — Mental Injuries — Statutes.
    The section of the no-fault automobile insurance statute which retains tort liability on a showing of certain injuries is not limited to physical injuries; the Legislature did not intend, by its use of the term "body function”, to exclude the possibility of recovering for mental injuries resulting in physical symptoms (MCL 500.3135[1]; MSA 24.13135[1]).
    3. Automobiles — Negligence — Mental or Emotional Injury — Question of Fact.
    The questions of whether a plaintiff in an automobile negligence case has sustained a mental or emotional injury which impairs a body function and whether that impairment is serious are questions of fact for the jury.

      Norman C. Halbower, for plaintiffs.

      Marcus, Ruck, Flynn & Hipkiss, P.C., for defendant.
    Before: T. M. Burns, P.J., and M. J. Kelly and D. F. Walsh, JJ.
   T. M. Burns, P.J.

This case raises an important question under the no-fault automobile insurance chapter concerning the extent to which § 3135(1) retains traditional tort liability for injuries which are emotionally or mentally based.

The car plaintiff Donna Luce was driving was struck head-on when the vehicle defendant Fred Gerow was driving crossed the center lane of a five-lane highway. Plaintiff received no serious physical injuries in the accident but her husband, who was riding in the passenger seat, sustained serious head injuries which are permanent in nature. Mrs. Luce claims that she suffered an emotional shock which has resulted in physical symptoms from seeing her husband at the time of the crash and as a reaction to his continuing poor condition.

The Luces brought suit to recover for the husband’s physical injuries, Mrs. Luce’s loss of consortium, and an independent claim of negligent infliction of emotional disturbance on behalf of Mrs. Luce. The husband’s claim and Mrs. Luce’s claim for consortium were settled. Mrs. Luce’s claim for "mental” injury was dismissed at the conclusion of her opening statement at trial, under GCR 1963, 117.2(1) (failure to state a claim upon which relief may be granted), because the trial court was of the view that a "mental injury” could not be impairment of a "body” function as that term is used in § 3135(1).

We begin our analysis by concluding that plaintiff has stated a cause of action which the courts of this state would have recognized before passage of the no-fault act. She claims that she witnessed a grievous injury inflicted on her husband which caused a mental injury which resulted in definite and objective physical symptoms. Daley v LaCroix, 384 Mich 4; 179 NW2d 390 (1970), Toms v McConnell, 45 Mich App 647; 207 NW2d 140 (1973), 2 Restatement Torts, 2d, § 436. Indeed, defendant seems to have conceded as much at oral argument.

The section of the no-fault chapter involved, MCL 500.3135(1); MSA 24.13135(1), retains traditional tort liability if certain threshold requirements are met. It provides:

"A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.”

Defendant urged, both in the brief and at oral argument, that the Legislature did not intend to retain liability for mental injuries, even those resulting in physical symptoms, which had been previously recognized. The conclusion is supposedly drawn from the plain language of the statute and we are asked to focus particularly on the phrases "injured person” and "serious impairment of body function”. The circuit court focused on the word "body” and found that this was to mean physical injury as opposed to mental injury.

The statutory phrase requiring a threshold showing of serious impairment of body function has not been definitively defined either in another section of the act or by the courts. See, Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 447-478; 208 NW2d 469 (1973). Most of the decisions construing the phrase deal with whether a particular physical injury was in fact "serious” or review a circuit court’s attempt to define the phrase for a jury. Cassidy v McGovern, 86 Mich App 321; 272 NW2d 644 (1978), Stevens v Hogue, 85 Mich App 185; 270 NW2d 735 (1978), lv den 404 Mich 828 (1979), Vitale v Danylak, 74 Mich App 615; 254 NW2d 593 (1977), McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976).

The question in this case is different than that faced in the earlier cases. We must decide whether the Legislature intended to exclude an entire class of injured persons, not because of the seriousness of their injury, but because of the type of injury sustained.

We reject defendant’s contention that the section retaining tort liability on a showing of a certain threshold is limited to physical injuries. An injury to mental well being can be as much an injury to a "body function” as an injury to an arm or a leg. Once it is accepted that mental injuries, with physical consequences, are "real” injuries, defendant’s position becomes unsupportable either in law or in logic. It is clear that under present medical and legal theory, mental injuries are considered just as real as physical injuries. We therefore hold, as a matter of law, that the Legislature did not intend to exclude the possibility of recovering for mental injuries resulting in physical symptoms by using the term "body function” in § 3135(1).

This category of injuries may be compensable. Whether a particular plaintiff has sustained a mental or emotional injury which impairs a body function and whether that impairment is serious remain questions for the jury under the cases cited above. The trial court erred in dismissing plaintiff’s suit on this basis.

Defendant also claims that plaintiff cannot recover for her injuries because she was not the "injured person” contemplated by § 3135(1). Under this view, the husband is the injured person and plaintiffs condition is merely a reaction to his injuries.

Much of what was said above applies here. The apparent assumption underlying defendant’s argument is that plaintiff’s injury is somehow less real, and therefore, not worthy of being compensated for, because none of her bones were broken. We cannot accept this proposition. If plaintiffs allegations are proved and accepted by the jury, it is apparent that she was "injured” in the accident. Compare Toms v McConnell, supra. Just as the jury should have been allowed to find that the mother was injured by watching her child being run over in Toms, the jury should be allowed to find that Mrs. Luce was injured, in her own right, by invasion of a protected property interest in mental well being, by witnessing and dealing with her husband’s condition in this case.

Reversed and remanded for proceedings consistent with this opinion. No costs, construction of a statute being involved.

       MCL 500.3135(1); MSA 24.13135(1).

       Many of the concepts and most of the theory upon which our no-fault act are built come from the Uniform Motor Vehicle Accident Reparations Act (UMVARA), 13 ULA (Master ed), p 349 et seq. See, Pries v Travelers Ins Co, 86 Mich App 221; 272 NW2d 247 (1978).
      One of the thresholds for retained tort liability in the Uniform Act is "significant permanent injury”. UMVARA § 5(a)(7). Injury is defined in § 1(a)(4) of the Uniform Act to include "bodily harm, sickness, disease, or death”. The commissioner’s comment to this section states: "This definition is taken from tort liability policy forms and is used throughout the Act to distinguish personal injury from harm to property. These terms do not distinguish between 'mental’ and 'physical’ illness.”
      Like the Uniform Act, our act should not be interpreted to distinguish between results of a physical injury and results of a mental injury. Both should be compensable once the threshold of "serious impairment of body function” is met.

       Defendant conceded at oral argument that plaintiff’s allegations and intended proofs are sufficient to avoid summary judgment under GCR 1963, 117.2(3) (no issue of fact) if we hold that such injuries are not excluded from retained liability under the act.


source: Caselaw Access Project

author: R. B. Burns, J.

license: Public Domain

text:
    MITCHELL v GENERAL MOTORS CORPORATION
    Docket No. 78-1159.
    Submitted February 21, 1979, at Detroit.
    Decided April 16, 1979.
    Leave to appeal applied for.
    Ernest O. Mitchell was granted workmen’s compensation benefits after his early retirement because of breathing problems. There was evidence before the Workmen’s Compensation Appeal Board from which it may be inferred that plaintiff developed asthma, bronchitis, and emphysema from exposure to pulmonary irritants in his workplace at General Motors Corporation. Plaintiff testified that he decided to retire early because his breathing problems progressed to the point that he had difficulty getting through a day’s work. Defendant sought to establish that the breathing problems were not severe and that plaintiff had retired early in order to obtain higher pension benefits until age 65. The appeal board, having concluded that plaintiff became disabled because of exposure to pulmonary irritants in the workplace and indicating that "it is immaterial why plaintiff left his job”, affirmed the order granting compensation. Defendant appeals. Held:

    1. The existence of competent evidence supporting the findings of fact of the Workmen’s Compensation Appeal Board does not relieve the Court of Appeals from considering the question of whether the appeal board improperly excluded from its consideration evidence relating to the reason the workman terminated his employment.
    2. The Workmen’s Compensation Appeal Board correctly recognized that the real issue is whether or not the workman suffered a work-related disability; but it erred in concluding that the reason the workman terminated his employment is immaterial to the question of whether he suffered a loss of wage-earning capacity.
    3. The weight to be given to evidence of the reason a workman terminated his employment is for the Workmen’s Compensation Appeal Board in its determination of whether the workman suffered a loss of wage-earning capacity.

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation § 633.

       82 Am Jur 2d, Workmen’s Compensation § 240 et seq.

       82 Am Jur 2d, Workmen’s Compensation §§ 347, 349.

       82 Am Jur 2d, Workmen’s Compensation § 634.

      Remanded for reconsideration.
    1. Workmen’s Compensation — Workmen’s Compensation Appeal Board — Findings of Fact — Question of Law.
    The Court of Appeals must still consider the question of whether the Workmen’s Compensation Appeal Board improperly excluded from its consideration evidence relating to the reason a workman terminated his employment even where there is competent evidence supporting the findings that the workman’s disability was work-related.
    2. Workmen’s Compensation — Termination of Employment — Wage Earning Capacity.
    The real issue in determining whether a workman is entitled to workmen’s compensation benefits is whether or not the workman suffered a work-related disability; however, it is improper for the Workmen’s Compensation Appeal Board, in reaching a determination on this issue, to conclude that the reason the workman terminated his employment is immaterial to the question of whether he suffered a loss of wage-earning capacity.
    3. Workmen’s Compensation — Workmen’s Compensation Appeal Board —'Findings of Fact — Wage Earning Capacity.
    The weight to be given evidence of the reason a workman terminated his employment is for the Workmen’s Compensation Appeal Board in its determination of whether the workman suffered a loss of wage-earning capacity.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C., for plaintiff.

      Francis S. Jaworski (Otis M. Smith, of counsel), for defendant on appeal.
    Before: Allen, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   R. B. Burns, J.

Defendant appeals from an order of the Workmen’s Compensation Appeal Board affirming the decision of the referee ordering payment of compensation benefits to plaintiff.

Plaintiff worked for defendant in an automobile body construction plant as a laborer from 1946 until January 24, 1974. There was evidence from which it may be inferred that plaintiff developed asthma, bronchitis, and emphysema from exposure to dust, smoke, fumes, and other pulmonary irritants in the plant. Plaintiff testified that he decided to retire early, because his breathing problems had progressed to the point where he had great difficulty getting through a day’s work. Defendant sought to establish that plaintiff’s breathing problems were not severe and were under control and that plaintiff actually retired early in order to obtain the higher pension benefits until age 65 which would apply before a pending change in the pension plan took effect. Medical testimony concerning disability and work relatedness was conflicting. After weighing the testimony, the board concluded that plaintiff became disabled from exposure to pulmonary irritants in the workplace. In the course of its opinion, the board referred to the controversy concerning the reason for plaintiff’s early retirement, stating:

"Be that as it may, it is immaterial why plaintiff left his job and the real issue is whether or not he suffered a work-related disability. Perry v Standard Automotive Parts, 392 Mich 756 (1974); Ward v Detroit Bd of Education, 399 Mich 879 (1977).”

It is not disputed on appeal that there exists competent evidence in the record to support the findings of fact made by the board. Rather, defendant argues that the board made an error on a question of law, see, e.g., Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923, 926 (1978), by concluding that it was immaterial why plaintiff left his job. Assuming defendant is correct, we may infer that the board might have reached a contrary conclusion had it not erroneously excluded from its consideration material evidence. Consequently, plaintiffs argument that we may not, or need not, reach the question of law because there exists competent evidence to support the board’s findings of fact is without merit. If, having found evidence to have been improperly excluded from consideration, we were to nonetheless affirm because other competent evidence supports the conclusion of the board, we would be improperly substituting our discretion for that of the board as to the weight to be given the excluded evidence vis-á-vis the remaining evidence. See, e.g., Pulley v Detroit Engineering & Machine Co, 378 Mich 418, 424; 145 NW2d 40, 43 (1966).

Although the board correctly recognized that the real issue was whether or not plaintiff suffered a work-related disability, rather than why plaintiff left his job, the board erred in concluding that the reason plaintiff left his job is immaterial.

Whether a worker has a compensable disability depends upon whether his injury resulted in a loss in wage earning capacity. See, e.g., Sims v R D Brooks, Inc, 389 Mich 91, 93; 204 NW2d 139, 140-141 (1973), Pulley v Detroit Engineering & Machine Co, supra, Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich App 217; 210 NW2d 360 (1973). Loss of wage earning capacity is a complex fact issue dependent upon the nature of work performed, continuing availability of work of that kind, the nature and extent of the disability, and the wages earned subsequent to injury. See Pulley v Detroit Engineering & Machine Co, supra, at 423; 145 NW2d at 43, Frammolino v Richmond Products Co, 79 Mich App 18, 27; 260 NW2d 908, 913 (1977). Evidence that an employee was still able to perform his job after injury is probative of the issue of whether the employee suffered a loss of wage earning capacity, but need not be decisive; it is only one of a complex of factors to be considered. See Pulley, supra, Medacco v Campbell, Wyant & Cannon Foundry Co, supra, Ward v Detroit Board of Education, 72 Mich App 568, 575-579; 250 NW2d 130, 133-134 (1976) (Bronson, J., dissenting). Similarly, evidence that an employee left his job for reasons unrelated to his injury tends to establish that he was still able to do the work, and had not suffered a loss in wage earning capacity.

Since the reason why an employee leaves his job is only one factor pertinent to the ultimate issue of whether the employee is entitled to compensation for his injury, it is improper to shift the inquiry from whether there was a loss in wage earning capacity to the issue of why the employee left his employment. Thus, in Perry v Standard Automotive Parts, 392 Mich 756 (1974) and Ward v Detroit Board of Education, 399 Mich 879 (1977), the Supreme Court remanded to the board for determination of whether plaintiffs suffered work-connected disabilities and not whether their work was terminated as a result of work-connected disabilities. Perry and Ward did not hold that the reason for termination is irrelevant to the determination of whether there was a loss in wage earning capacity. Such evidence is relevant. See Pulley, supra, Medacco, supra.

Evidence that plaintiff retired early because of lung problems would tend to establish loss of wage earning capacity. Evidence that he left early to obtain higher pension benefits would tend to establish the contrary. The weight to be given the evidence is for the board’s determination.

Remanded for reconsideration.


author: J. H. Gillis, J.

text:
    MICHIGAN DISPOSAL, INC v AUGUSTA TOWNSHIP
    Docket No. 78-1182.
    Submitted March 12, 1979, at Lansing.
    Decided April 16, 1979.
    Michigan Disposal, Inc., operates a sanitary landfill in Augusta Township, Washtenaw County, under a conditional use permit issued by the township. The township adopted an ordinance regulating the disposal of sludge, a product of water and sewage treatment facilities, and one day before this ordinance went into effect Michigan Disposal contracted with the Washtenaw County Board of Public Works to dispose of sludge displaced by a sewage plant expansion.
    Shortly thereafter the township planning commission and township board of zoning appeals voted to terminate Michigan Disposal’s use permit. Michigan Disposal brought an action against the township seeking injunctive relief and a declaration relating to the validity of the sludge disposal ordinance. The Washtenaw Circuit Court, Roy J. Daniel, J., dismissed most of the plaintiff’s requests, but held that while the township could regulate solid waste disposal, it could not prohibit such activity once the state has licensed it in a properly zoned area. Defendant township appeals. Held:

      A local governing body may refuse to issue a permit for a sanitary landfill even though the site has been approved by the state if the refusal is based upon factors not examined by the state authorities. The township ordinance is invalid to the extent that it allows the township to deny a permit based upon factors previously determined by the state. In this case the record does not indicate what factors were considered when the state issued its license for use of the site. Therefore, the case is remanded for a determination of those factors.
    Remanded.
    Health and Environment — Statutes — Sanitary Landfills — Potential Pollution — Local Government — Zoning — Permits.
    A local governing body may not use "potential pollution” as a reason for denying a permit to use a site for a sanitary landfill after the state has determined that no danger of pollution is posed by such use of the site; however, the local governing body may refuse to issue a permit based upon factors not examined by the state authorities (MCL 325.292; MSA 14.435[2]).

      Reference for Points in Headnotes

       61 Am Jur 2d, Pollution Control § 101.

      O’Hagan & Conlin, P.C., for plaintiff.

      Calder, Kirkendall & Logeman, P.C., for defendant.
    Before: Cynar, P.J., and J. H. Gillis and N. A. Baguley, JJ.

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

   J. H. Gillis, J.

Defendant, Augusta Township, appeals from an order of the Washtenaw County Circuit Court which, inter alia, declared that a township ordinance regulating the disposal of sludge is invalid to the extent that it allows the township to deny a permit for sludge disposal where plaintiff had complied with all other applicable ordinances, and where such disposal would otherwise be permitted by license of the Department of Natural Resources.

Since 1974, plaintiff has operated a sanitary landfill under a conditional use permit issued by the township. In May, 1977, the landfill became the proposed site for the disposal of 40,000 cubic yards of sludge to be displaced by expansion of the Ann Arbor municipal sewage treatment facility.

On January 8, 1978, the township board adopted an ordinance regulating the disposal of sludge, said ordinance to take effect on February 11, 1978. On the day before the ordinance was to take effect, plaintiff contracted with the Washtenaw County Board of Public Works to dispose of the sludge to be displaced by the sewage plant expansion.

On February 15, 1978, the township notified plaintiff of its intention to hold a hearing to determine whether there were grounds to terminate plaintiffs conditional use permit. Testimony was taken at a joint meeting of the township planning commission and the township zoning board of appeals. Findings of fact were issued and it was concluded that plaintiff had violated the conditions of its permit. At a meeting held February 27, 1978, the combined boards unanimously voted to terminate the permit.

Plaintiff commenced this action the next day, seeking injunctive relief. Plaintiff was subsequently allowed to amend its pleadings to request a declaratory judgment on the validity of the sludge ordinance.

The trial court dismissed most of plaintiffs requests for relief with one significant exception. The court held that while the township may regulate solid waste disposal within its boundaries, it could not prohibit such activity once the state has licensed it in a properly zoned area. It is from this portion of the judgment that defendant has appealed.

That portion of the township ordinance which the trial court found deficient provides:

"In determining whether or not to grant the license applied for, the township board shall consider the application, the reports of its professional advisors, the report of the planning commission, and the, evidence presented at the public hearing. It shall also consider the determination of the people of the State of Michigan in the Constitution of 1963, Article IV, Sec. 52 that the conservation and development of the natural resources of the state are of paramount public concern in the interest of the health, safety and general welfare of the people. It shall grant the license only if it first determines that the proposed activities will not pollute, impair or destroy significant natural resources, create hazards to the public health or safety, or result in public or private nuisance that is reasonably predictable.”

It is defendant’s contention that the ordinance under consideration is expressly authorized by § 2 of the garbage and refuse disposal act, which provides:

"No person shall dispose of any refuse at any place except a disposal area licensed as provided in this act. Nothing in this act nor any act of the commissioner’s shall usurp the legal right of a local governing body from developing and enforcing local ordinances, codes, or rules and regulations on solid waste disposal equal to or more stringent that the provisions of this act, nor will this act relieve the applicant for license to operate a disposal area from obtaining a license from a local governing body when required or relieve the person owning or operating a disposal area from responsibility for securing proper zoning permits or complying with all applicable local ordinances, codes, or rules and regulations not in conflict with this act.” MCL 325.292; MSA 14.435(2).

The foregoing provision has created some confusion over the extent to which a local governing body can prohibit a state-permitted use.

In Waterford Processing & Reclaiming Co v Waterford Twp, 25 Mich App 507; 181 NW2d 675 (1970), a local zoning ordinance required a person seeking to operate a landfill to obtain a permit. Such permit was to be granted only upon a determination by the township that the proposed operations would not be "injurious to the general public health, safety and welfare of the township and its citizens”. Id. at 509. After the state had granted a permit, the township refused to issue one because the planning commission believed there was a possibility that a nearby lake would be polluted. The action of the board was reversed by the circuit court and this Court affirmed that decision stating:

"Once the commissioner has approved a certain site and imposed operating conditions, the local governing body may impose any additional reasonable regulations designed to eliminate any forseeable health hazard. However, these local regulations may not exclude what the state has permitted. Builders Association v Detroit, 295 Mich 272; [294 NW 677] (1940). Since the operation of the Waterford Township zoning ordinance has an exclusionary elfect in this case, that portion of the ordinance permitting refusal of a local license to a state licensee is void as applied.” 25 Mich App at 511, 512.

The above-quoted material would seem to indicate that whenever the state has granted an applicant a permit to operate a landfill the local government is without authority to prohibit such use. However, subsequent case law indicates otherwise.

In Haring Twp v Cadillac, 35 Mich App 260; 192 NW2d 384 (1971), a township zoning ordinance prohibited the storage of garbage except by the township or its agents. The Department of Natural Resources gave the City of Cadillac permission to use state-owned land, located within the township, for landfill purposes. It also prohibited any use or occupancy of land without prior certification by the township, for landfill purposes. It also prohibited any use or occupancy of land without prior certification by the township building inspector. The lower court enjoined the City of Cadillac from using the land for dumping and the decision was affirmed by this Court with the simple statement that the "statute of the State of Michigan [MCL 325.292; MSA 14.435(2)] and the rules promulgated by the Department of Natural Resources mandate compliance with local ordinances”. 35 Mich App at 263.

The apparent conflict between Haring and Waterford was resolved in Dettore v Brighton Twp, 58 Mich App 652; 228 NW2d 508 (1975). The Court there noted that in Waterford, the land under consideration had already been zoned to permit its use as a sanitary landfill. In addition, the only reason the permit was denied was because the local commission believed there was a possibility of pollution. The Dettore Court stated that this "reason was obviously untenable” since the state license was granted only after it was determined that unlawful pollution would not be created. The Court subsequently set forth the following:

"In Waterford, the applicant had met zoning requirements and had complied in every respect with all applicable local regulations. Its request for a permit was denied by the local officials for a reason which was both unsupported by the facts and 'in conflict with this act’. MCL 325.292; MSA 14.435(2). Waterford, then, stands for the proposition that issuance of a state license pursuant to the garbage and refuse act prohibits the locality from denying a permit for reasons or under circumstances inconsistent with the express provisions of the act itself.” Dettore v Brighton Twp, supra, at 658-659.

In Jamens v Avon Twp, 71 Mich App 70, 78; 246 NW2d 410 (1976), the Court distilled the following two-fold rule from the above trilogy of cases:

"First, once the Department of Natural Resources pursuant to the garbage and refuse disposal act, MCL 325.291 et seq.; MSA 14.435(1) et seq., has authorized a particular location as a landfill and has prescribed operating procedures, townships may supplement the DNR requirements with '* * * any additional reasonable regulations designed to eliminate any foreseeable health hazard. However, these local regulations may not exclude what the state has permitted’. Waterford, supra, at 511. (Emphasis in original.) Second, DNR licensees may not disregard local government zoning.”

We think this is a somewhat broad reading of Dettore. We read it to mean that once the state has determined that no danger of pollution is posed by the use of a site as a sanitary landfill, the local governing body may not use "potential pollution” as a reason for denying a permit. However, the local governing body may refuse to issue a permit based upon factors not examined by the state authorities.

In the instant case the township ordinance provides that a license shall be granted only if the board determines that the proposed activities "will not pollute, impair or destroy significant natural resources, create hazards to the public health or safety, or result in public or private nuisance”. The record does not indicate exactly what factors were considered and resolved when the decision was made to issue a state license. Presumably the dangers of water contamination and pollution were considered. Waterford, supra, at 511. To the extent that the ordinance at issue allows the township to deny a permit based upon factors previously determined by state authorities it is invalid. However, since we are unable on the record before us to determine whether all of the factors to be examined under the ordinance have previously been resolved by the state authorities we remand the case for such a determination.

Remanded for proceedings consistent with this opinion. No costs, a public question being involved.

       In Jamens v Avon Twp (On Remand), 78 Mich App 289; 259 NW2d 349 (1977), the Court reversed its prior decision and held that the plaintiff had failed to satisfy the burden of proving that the zoning ordinance, which restricted a proposed landfill site to residential purposes, was unconstitutional.


author: Danhof, C.J.

text:
    IN THE MATTER OF THE PETITION OF METROPOLITAN COUNCIL 23, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO
    Docket No. 78-1196.
    Submitted February 5, 1979, at Detroit.
    Decided April 16, 1979.
    Leave to appeal applied for.
    Metropolitan Council 23, American Federation of State, County and Municipal Employees, AFL-CIO, is the labor representative for 17 prosecutor’s investigators in the Oakland County Prosecutor’s Office. When it reached an impasse in negotiations with Oakland County, the union petitioned the Michigan Employment Relations Commission for compulsory arbitration under the compulsory arbitration of labor disputes in municipal police and fire departments act. The Michigan Employment Relations Commission determined that the investigators were subject to the hazards of police officers and were, therefore, eligible to invoke compulsory arbitration under the act. The Court of Appeals hears the appeal of Oakland County as if by leave granted. Held:

    1. The Michigan Employment Relations Commission is authorized to determine the eligibility of public employees for compulsory arbitration under the compulsory arbitration of labor disputes in municipal police and fire departments act.
    2. Any Michigan Employment Relations Commission ruling concerning the eligibility of public employees for compulsory arbitration may be appealed to the Court of Appeals prior to the commencement of arbitration by leave granted; where leave is denied, the issue is preserved for appeal to the circuit court after arbitration.
    3. A bargaining unit of prosecutor’s investigators is eligible for compulsory arbitration under the compulsory arbitration of labor disputes in municipal police and fire departments act where the investigators are employees of any department of a city, county, village or township and where they are engaged as policemen or subject to the hazards of police officers.

      References for Points in Headnotes

       48A Labor and Labor Relations § 1773.
    Validity and construction of statutes or ordinances providing for arbitration of labor disputes involving public employees. 68 ALR3d 885.

       2 Am Jur 2d, Administrative Law § 722.

      4. Appellate review of a decision of the Employment Relations Commission must be confined to examination of the record to ascertain whether the decision is supported by competent, material and substantial evidence and that it is not in violation of constitution or statute, and the Court of Appeals will substitute its judgment for that of the Commission only upon a clear showing of error.
    Affirmed.
    1. Labor Relations — Statutes — Municipal Employees — Compulsory Arbitration.
    The Michigan Employment Relations Commission is authorized to determine the eligibility of public employees for compulsory arbitration under the compulsory arbitration of labor disputes in municipal police and fire departments act (MCL 423.231 et seq.; MSA 17.455[31] et seq.).

      2. Labor Relations — Michigan Employment Relations Commission — Appeal and Error — Statutes — Court Rules.
    Any Michigan Employment Relations Commission ruling concerning the eligibility of public employees for compulsory arbitration may be appealed to the Court of Appeals prior to the commencement of arbitration by leave granted; where leave is denied, the issue is preserved for appeal to the circuit court after arbitration (MCL 423.23[1], 432.242; MSA 17.454[25][1], 17.455[42], GCR 1963, 801.1).
    3. Labor Relations — Statutes — Compulsory Arbitration — Prosecutor’s Investigators.
    A bargaining unit of prosecutor’s investigators is eligible for compulsory arbitration under the compulsory arbitration of labor disputes in municipal police and fire departments act where the investigators are employees of any department of a city, county, village or township and where they are engaged as policemen or subject to the hazards of police officers (MCL 423.231 et seq.; MSA 17.455[31] et seq.).

    4. Appeal and Error — Administrative Law — Employment Relations Commission — Evidence — Record.
    Appellate review of a decision of the Employment Relations Commission must be confined to examination of the record to ascertain whether the decision is supported by competent, material, and substantial evidence and that it is not in violation of constitution or statute, and the Court of Appeals will substitute its judgment for that of the Commission only upon a clear showing of error.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Francis W. Edwards and Jon M. DeHorn, Assistants Attorney General, for the Michigan Employment Relations Commission.

      A. Russell Messina, Assistant Oakland County Civil Counsel, for Oakland County.

      Zwerdling & Maurer, for Metropolitan Council 23, American Federation of State, County and Municipal Employees, AFL-CIO.
    Before: Danhof, C.J., and Bronson and Beasley, JJ.
   Danhof, C.J.

Appellee, Metropolitan Council 23, American Federation of State, County and Municipal Employees, AFL-CIO, is the labor representative for a bargaining unit composed of 17 prosecutor’s investigators in the Oakland County Prosecutor’s Office. In April, 1977, appellee and appellant Oakland County reached an impasse in their negotiations for a labor contract. The union thereupon wrote to the Michigan Employment Relations Commission (MERC), requesting submission of the contract dispute to a compulsory arbitration panel pursuant to MCL 423.231 et seq.; MSA 17.455(31) et seq., 1969 PA 312, the compulsory arbitration of labor disputes in municipal police and fire departments act (hereinafter referred to as Act 312). Oakland County responded that its prosecutor’s investigators were not police officers within the purview of Act 312 and could not invoke compulsory arbitration.

On October 6, 1977, MERC held a hearing to determine whether the prosecutor’s investigators’ bargaining unit was subject to the provisions of Act 312. In an opinion and order issued on March 8, 1978, MERC found that the unit was eligible for compulsory arbitration. Oakland County filed an appeal as of right from this decision.

Prior to addressing the substantive issues raised, we must first discuss whether MERC had the authority to determine the applicability of Act 312 to the Oakland County prosecutor’s investigators and, if so, the proper method of appealing that decision.

Act 312 defines those employees eligible for compulsory arbitration, MCL 423.232; MSA 17.455(32), but does not specify whether MERC or the courts should have initial authority to decide which employees fall within that definition. However, Act 312 does provide that any requests for compulsory arbitration are to be submitted to MERC, and that MERC is the agency legislatively authorized to supervise the compulsory arbitration process. MCL 423.233 et seq.; MSA 17.455(33) et seq.

In addition, the Legislature specifically intended to afford public employees within the scope of Act 312 "an alternate, expeditious, effective and binding procedure for the resolution of disputes”, thus averting the possibility of a strike by essential public servants. (Emphasis supplied.) MCL 423.231; MSA 17.455(31). This legislative intent would be ill-served by imposing the lengthy delays inherent in initial court review and resolution of the scope of Act 312. We find that MERC has the necessary implied authority and expertise in labor relations to initially determine the eligibility of public employees for compulsory arbitration. See Oakland County Sheriff’s Dep’t, 1977 MERC LO 843.

As for the proper method of seeking review of such a MERC decision, Act 312 is also silent. We may look for some indication of legislative intent in the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., which is in pari materia with Act 312. MCL 423.244; MSA 17.455(44). However, in its present posture, the dispute before us involves neither the mediation of a grievance within the scope of MCL 423.207; MSA 17.455(7), nor the resolution of an unfair labor practice charge, MCL 423.216; MSA 17.455(16).

We therefore turn to the labor mediation act, MCL 423.1 et seq.; MSA 17.454(1) et seq., for guidance. Although this act governs labor relations only in the private sector, it is nevertheless instructive in the absence of any legislative directive specifically pertaining to the public sector. MCL 423.23(10); MSA 17.454(25)(1) provides that, except for MERC decisions concerning unfair labor practices, all MERC rulings and orders "shall be reviewable only by the supreme court and on petition for writ of certiorari or such other process as may be appropriate”. By virtue of GCR 1963, 801.1, the above-mentioned MERC rulings and orders should now be appealed to the Court of Appeals rather than to the Supreme Court.

We conclude that any MERC ruling concerning the eligibility of public employees for compulsory arbitration may be appealed prior to the commencement of arbitration by filing for leave to appeal in this Court. If leave is granted, this Court will fully review MERC’s decision. If leave is denied, the parties must submit the dispute to arbitration according to the procedures outlined in Act 312. The issue of the arbitration panel’s jurisdiction over the parties under Act 312 may then be raised, along with an attack on the award itself, in an appeal to the' appropriate circuit court. MCL 423.242; MSA 17.455(42).

We now turn to the merits of the instant controversy. The statutory standard for determining the applicability of compulsory arbitration is as follows:

"Sec. 1. It is the public policy of this state that in public police and fire departments, where the right of employees to strike is by law prohibited, it is requisite to the high morale of such employees and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes, and to that end the provisions of this act, providing for compulsory arbitration, shall be liberally construed.” MCL 423.231; MSA 17.455(31).
"Sec. 2. (1) Public police and fire departments means any department of a city, county, village, or township having employees engaged as policemen, or in fire fighting or subject to the hazards thereof, emergency medical service personnel employed by a police or fire department, or an emergency telephone operator employed by a police or fire department.” MCL 423.232(1); MSA 17.455(32)(1).

In order to invoke compulsory arbitration, members of a bargaining unit must, according to MCL 423.232(1), be employees of "any department of a city, county, village or township”. The prosecutor’s investigators here involved fulfill this requirement in that they are all employed by the Prosecutor’s Office of defendant Oakland County. Compare Ypsilanti Police Officers Association v Eastern Michi gan University, 62 Mich App 87; 233 NW2d 497 (1975).

Act 312 also provides that the employees must be "engaged as policemen * * * or subject to the hazards thereof’. MCL 423.232(1). Both plaintiff union and MERC argue that if the duties performed by prosecutor’s investigators fall within the scope of this language, then Act 312 is applicable. Defendant, however, contends that implicit in the legislative intent inspiring Act 312 is the further requirement that covered employees perform functions critical to maintaining public order and safety.

In support of its contention, defendant points to statements made by this Court in Lincoln Park Detention Officers v City of Lincoln Park, 76 Mich App 358; 256 NW2d 593 (1977). It was there asserted that compulsory arbitration statutes are generally limited to critical public employees, and that such statutes are aimed at preventing work stoppages by certain public employees whose absence could threaten the safety of the entire community. Detention Officers, supra, at 364-365. While we agree with the above statements, we note that they were made in the context of distinguishing nonessential police department employees, who were held to be outside the scope of Act 312, from police officers. Rather than setting up a dichotomy between critical and noncritical police officers, this Court affirmed that the sole statutory precondition for invoking Act 312, other than employment by a municipal or county department, is that the employees be "either police officers or those subject to the hazards of police officers”. Detention Officers, supra, at 366. See also Oakland County Sheriff’s Dep’t, supra. MERC thus applied the correct statutory standard in its decision below.

The remaining question is whether the evidence adduced at the MERC hearing supports MERC’s ruling that the Oakland County prosecutor’s investigators are "subject to the hazards of police officers”. This Court will not reverse MERC’s decision if it is supported by competent, material and substantial evidence on the whole record. Const 1963, art 6, § 28. See also Regents of the University of Michigan v Employment Relations Comm, 389 Mich 96, 101-102; 204 NW2d 218 (1973), Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 121-124; 223 NW2d 283 (1974), Local 547, International Union of Operating Engineers, AFL-CIO v Ford Hospital, 59 Mich App 625, 628-629; 229 NW2d 925 (1975).

At the MERC hearing, two Oakland County prosecutor’s investigators testified to the nature of their employment. The Prosecutor’s Office employs 17 investigators assigned to four divisions: An Organized Crime Strike Force (17 employees); a Welfare Fraud Division (4 employees); a Criminal Investigation Division (5 employees); and a Consumer Fraud Division (1 employee).

As their title implies, prosecutor’s investigators conduct investigations into and surveillance of various aspects of criminal misconduct in Oakland County. Fifteen of the investigators have prior police experience and are deputized by the Oakland County Sheriffs Department.

While performing their duties, the investigators are required by oral order of their supervisor, the Chief Criminal Investigator of the Prosecutor’s Office, to carry weapons at all times. Various investigators have, on occasion, been required to use their weapons in the course of their duties, have had guns trained on them, and have suffered injury in the performance of their duties. During certain particularly hazardous assignments, investigators have been wired with one-way transmitters. Investigators are also on call at all times.

As a result of their investigations, the investigators make arrests, handle booking and "mugging” of prisoners, and prepare arrest reports. One witness testified that during the first nine months of 1977, the investigators had made 190 arrests.

Investigators from the prosecutor’s office work with and are used interchangeably with state police officers in the performance of certain investigative assignments, particularly those involving organized crime and narcotics law enforcement. Investigators also occasionally work with local police departments.

Although neither witness at the hearing specifically explained the duties of investigators in the Welfare Fraud and Consumer Fraud Divisions, there was testimony that, with the exception of the two nondeputized individuals, all of the investigators could transfer among the four divisions. Even so, within their own divisions, the two nondeputized investigators performed assignments not varying significantly in scope from those of deputized investigators.

As summarized above, the evidence adduced at the MERC hearing substantially supports MERC’s conclusion that the investigators are subject to the same hazards confronting police officers and may invoke compulsory arbitration under Act 312.

Finally, we briefly dispose of defendant’s contention that the statutory definition of employees eligible for compulsory arbitration, MCL 423.232(1); MSA 17.455(32)(1), is so vague as to deprive defendant of due process of law. Defendant argues that the phrase "or subject to the hazards thereof’ is not sufficiently comprehensible by persons of common intelligence and invites arbitrary, discriminatory application.

The "void for vagueness” doctrine was primarily developed within the context of penal statutes and of laws threatening infringement of individuals’ First Amendment rights. See, e.g., Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972), People v Miller, 78 Mich App 336; 259 NW2d 877 (1977). The compulsory arbitration procedure falls within neither category. Furthermore, the phrase about which defendant complains is sufficiently precise to be understood, interpreted and applied by persons of common intelligence.

The MERC ruling is affirmed. No costs, a public question involved.

       The prosecutor’s investigators were hired pursuant to the authority granted by MCL 49.31; MSA 5.791.

         Defendant herein filed a claim of appeal as of right. Since neither the parties nor this Court noted the jurisdictional problem at the time of filing, we will treat this case as if leave to appeal had been granted.

       The breakdown of the arrests by category of crime involved was as follows:
      "In narcotics related arrests, there were 101; conspiracy to burn real property, there were five; arson, one; burn [sic] insured property, there were three; fraud, there were three; obtaining money under false pretenses, there were thirteen; violation of the State usery laws, two; accepting earnings of a prostitute, three; * * * [pjandering, one; aggravated assault, one; ticket scalping, one; unlawfully driving away an automobile, one; receiving and concealing property over one hundred dollars, ten; aiding and abetting and carrying a pistol, one; failure to enforce the law, two; embezzlement, two; larceny over one hundred dollars, two; fail [sic] to register firearms, one; welfare fraud and criminal non-support, thirty-seven.”

         The two nondeputized investigators were assigned to the Welfare Fraud and the Criminal Investigation Divisions.


author: N. J. Kaufman, J.

text:
    ABBEY HOMES OF MICHIGAN, INC v WILCOX ABBEY HOMES OF MICHIGAN, INC v CASEY
    Docket Nos. 78-2015, 78-2080.
    Submitted February 21, 1979, at Detroit.
    Decided April 16, 1979.
    Leave to appeal applied for.
    Plaintiff Abbey Homes of Michigan, Inc., and others, brought an application to alter the course of Old Orchard Trail, a public highway bordering on Orchard Lake in Orchard Lake Village in Oakland County. Despite some strong local opposition, the city counsel of Orchard Lake Village approved the proposal to move the intersection of Old Orchard Trail and Pontiac Trail some 410 feet. At the statutorily required hearing in circuit court, defendants Malcolm Wilcox and Everett Casey, and others, opposed the alteration of the course of Old Orchard Trail on the basis that the proposed route would eliminate a portion of Old Orchard Trail hordering on Orchard’ Lake, such portion of the road having scenic value. Witnesses in favor of the alteration testified that the alteration would eliminate, at no cost to the taxpayers, certain safety hazards of the existing route and intersection, and that the altered route would provide a better view of the lake than the existing route. The Oakland Circuit Court, Alice L. Gilbert, J., upon determining that no reasonable objection existed as to the alteration of the course of Old Orchard Trail and that the alteration was in the best interest of the public, issued an order allowing the alteration. Defendants Wilcox and Casey appeal separately. The appeals were consolidated. Held:

    1. Appellate review of an order altering the course of a public highway which borders a lake requires that the Court of Appeals determine whether the circuit court made any errors of law or whether the circuit court’s findings of fact are clearly erroneous.
    2. The hearing by the circuit court of an application to alter the course of a public highway which borders upon a lake is de

      novo in nature; however, the circuit court’s belief that its role is one of reviewing the actions of local officials does not result in reversible error where the court made an independent determination in accordance with the statutory guidelines.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 648 et seq. 702, 703, 839, 841.
    39 Am Jur 2d, Highways, Streets, and Bridges §§ 131, 136.

       39 Am Jur 2d, Highways, Streets, and Bridges §§ 131, 136.

      3. Evidence of the effect of an alteration of the course of a public highway upon portions of the highway lying beyond 5 rods from the lake shore is properly considered in determining whether to grant an application to alter the course of a public highway which borders a lake.
    4. The term “reasonable objection”, as used in the act governing the alteration of the course of a public highway which borders a lake, requires the circuit court to consider all the circumstances, including an evaluation of the best interest and welfare of the public, in its determination of whether the course of the highway should be altered.
    Affirmed.
    1. Appeal and Error — Standard of Review — Public Highway — Statutes.
    Appellate review of a circuit court’s order altering the course of a public highway which borders a lake requires a determination of whether the circuit court made any errors of law or whether the circuit court’s findings of fact are clearly erroneous (MCL 247.45; MSA 9.55).
    2. Highways — Highways Bordering Lake — Hearing — Statutes.
    A hearing by a circuit court of an application to alter the course of a public highway which borders upon a lake is de novo in nature; however, a circuit court’s belief that its role is one of reviewing the actions of local officials does not result in reversible error where the court makes an independent determination in accordance with the statutory guidelines (MCL 247.44; MSA - 9.54).
    3. Highways — Evidence — Highways Bordering Lake — Effect of Alteration of Course.
    Evidence of the effect of an alteration of the course of a public highway upon portions of the highway lying beyond 5 rods from a lake shore is properly considered in determining whether to grant an application to alter the course of a public highway which borders a lake.
    4. Highways — Highways Bordering Lake — Reasonable Objection — Scope of Considerations — Statutes.
    The term "reasonable objection”, as used in the act governing the alteration of the course of a public highway which borders a lake, requires that the circuit court consider all the circumstances, including an evaluation of the best interest and welfare of the public, in its determination of whether the course of the highway should be altered (MCL 247.44; MSA 9.54).

      Schmier, Fealk & Ellis (by Allen Zemmol), for plaintiff.

      Everett R. Casey (pro se).

      Kerr, Wattles & Russell (by Robert R. Nix, II), for defendant Wilcox.
    Before: Allen, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Defendants appeal from a March 28, 1978, order of the Oakland County Circuit Court which allowed alteration of Old Orchard Trail in Orchard Lake Village, Oakland County. Defendants claim that the circuit judge misconstrued and misapplied MCL 247.41 et seq.; MSA 9.51 et seq. We disagree and affirm.

According to its title, the act under consideration exists "to prevent the abandonment, discontinuance or alteration of the course of any public highway which borders upon, or is adjacent to any lake.” It provides in relevant part as follows:

"No public highway which borders upon, or is adjacent to any lake, or the general course of any stream, or crosses any stream, nor any portion of such highway so bordering upon a lake or general course of any stream, shall be discontinued by the order or action of any official or officials of any township, city or incorporated village in this state, until an order authorizing the same shall have been made by the circuit court of the county in which such highway is situated in the manner as hereinafter provided.” MCL 247.41; MSA 9.51.
"Whenever the official or officials having jurisdiction over the highways of any township, village or city in this state shall desire to abandon, discontinue or alter the course s of any public highway mentioned in the preceding section, before any action shall be taken by the said public authority or authorities of any township, village or city, an application signed by not less than 7 freeholders of the township, village or city in which such highway is situated, shall be made to the circuit court for the county in which such highway is located, setting forth the particular circumstances of the case, an accurate description of the highway proposed to be abandoned, discontinued or altered, together with the reasons therefor, which application shall be verified by 1 or more of the persons so signing.” MCL 247.42; MSA 9.52.
"Upon the filing of such application it shall be the duty of the presiding circuit judge to make an order fixing a day of hearing thereon.” MCL 247.43; MSA 9.53.
"Upon the day of hearing of such application or any adjournment thereof, testimony shall be taken on the part of the petitioner and any person or persons interested in such application, and if it shall satisfactorily appear to the court that there is no reasonable objection thereto, and that it is necessary for the best interest and welfare of the public that such highway be abandoned, discontinued or altered as to its course, as prayed for in such application, or if it shall appear to the court that such highway or any part thereof should remain as then established, an order shall be made and entered in the record of the court in accordance with such determination.” MCL 247.44; MSA 9.54.
"The proceedings therein shall be subject to review by certiorari.” MCL 247.45; MSA 9.55.
"The term 'adjacent’ as used herein, shall be construed to include any highway, or portion thereof, lying within 5 rods of the shore of any lake or the general course of any stream.” MCL 247.46; MSA 9.56.

This case began when Abbey Homes of Michigan, which wishes to subdivide some property along the south edge of Orchard Lake, and other petitioners proposed to move the intersection of Old Orchard Trail with Pontiac Trail 410 feet southwesterly away from the border of Orchard Lake. See diagram in appendix.

Despite some strong local opposition to the plan, the city council of Orchard Lake Village eventually approved the petitioners’ proposal. Petitioners filed the statutorily required application in the circuit court on February 3, 1978. The court held hearings on March 6, 8, 10, 27, and 28, 1978, and stated:

"The Court finds as a matter of law and fact:
"* * * that the objections made to the altering of the highway relate to the loss of part of a historic route around Orchard Lake, and a loss of the public scenic view of the lake for six hundred sixty feet of highway adjacent to the lake.
"There is no question that any point where land meets a body of water is unique; and that the proposed alteration of Old Orchard Trail will eliminate the visual scenic beauty of the lake to the public.
"The issue presented to the Court is whether the proposed altered road is in the best interest and welfare of the public.
"The testimony indicates that the existing road is inadequate for the following reasons: Too narrow; inadequate shoulders; road design improper for current traffic patterns and vehicles; the radius of the curve of the road is less than the minimum road commission standards; there is a safety hazard in the reverse arcs of the curve; the banking of the curve fails to meet the road commission minimum standards; sight obstructions exist at the intersection of Pontiac Trail; and at the existing intersection the line sight is less than County road minimum standards; the trees partially block the driver’s view of the lake; and the home owners would have to cross the road to take advantage of their riparian rights.
"The testimony indicates that the proposed altered road would be an adequate and better road for the following reasons: Proper width and design for current and prospective traffic flow of vehicles; adequate shoulders; provides better radius and curve as required by the road commission standards; banking of the curve exceeds minimum standards; provides for scenic view of the lake with no obstructions while going north, directly to the lake; provides safer intersection with Pontiac Trail, with no sight obstructions, and better than minimum line sight; and pedestrian access to the lake requires no crossing of the road.
"The evidence further indicates that although the existing Old Orchard Trail could be improved, little can be done to improve the existing intersection with respect to the line sight requirements.
"Any improvements to the existing road would be at the City or public expense.
"The evidence further indicates that the proposed altered road requires no public expense, in that the new road would be constructed at builders’ expense; and the land would be donated by the owner to provide for adequate shoulders.
"The proofs show only four hundred feet of the highway bordering on the lake would be altered, and that there would remain over thirteen thousand feet of highway adjacent to the lake for continued public use.
"The Court finds that the scenic beauty of the existing road would on balance be exchanged for the aesthetic beauty for the proposed altered road.
"Therefore, the objections to the proposed altered road, although real, are not reasonable when all the circumstances are taken into consideration.
"For all the foregoing reasons, the Court finds that the proposed altered highway is in the best interest and welfare of the public.”

On May 3, 1978, the circuit court heard and denied numerous motions for a rehearing. Defendants now appeal. We must determine if the circuit court made any errors of law or if the court’s findings of fact are clearly erroneous.

The parties raise numerous issues on appeal and we address their concerns in the following discussion of the act. Since each issue relates to the interpretation of a statute, we must remember "it is elementary that the rules of common sense apply to the construction of statutes.” Attorney General ex rel Connolly v Reading, 268 Mich 224, 230; 256 NW 432 (1934).

Defendant Casey claims that the circuit court was unduly influenced by a mistaken belief that its role was to review the determination of local officials rather than to conduct a de novo hearing.

Defendant’s interpretation of the statute is correct. The circuit court proceedings required by the act constitute an original action in that court. While the appropriate local officials must first desire to alter the course of a road protected by the act before the court petition and hearing procedures become necessary, see MCL 247.42; MSA 9.52, the court’s role is to make an independent determination of the matter based on the guidelines of MCL 247.44; MSA 9.54. The court is not reviewing the actions of local officials.

In the instant case, over a month after her decision, the judge mistakenly referred to her role as one of reviewing the decision of the City of Orchard Lake. However, since the judge strictly adhered to the guidelines of the act and made an independent determination of the issue, her error does not require reversal. An improper label does not alter the product.

Defendant Casey also argues that the judge could not consider evidence regarding those portions of Old Orchard Trail which lie farther than 5 rods from the lake in determining whether or not to approve the alteration. Defendant is particularly concerned with the court’s interest in the line sight deficiencies of the existing intersection of Old Orchard Trail and Pontiac Trail, which intersection is farther than 5 rods from the lake.

Circuit court approval is required before alterations can be made in the course of any city, village or township road which lies within 5 rods of a lake shore. MCL 247.41; MSA 9.51 and MCL 247.46; MSA 9.56. But in determining whether or not to approve a proposed alteration governed by the act, the court is nowhere limited by the act to consideration of evidence regarding only that portion of road within 5 rods of a lake. With apologies to John Donne: No stretch of road is an island, entire of itself. Where the portion of road under consideration draws its characteristics from the terrain, the traffic and the rest of its length, a court would be remiss in not considering those factors, regardless of their distance from the lake. Indeed, as a general rule, a court should consider all relevant evidence in making its decision. See generally MRE 401, 402 and 403.

In deciding to approve the alteration of Old Orchard Trail, the circuit judge considered evidence regarding the road and terrain within the immediate area of the proposed alteration, but farther than 5 rods from the lake. However, since this evidence relates directly to the advisability of the alteration, the judge did not err in receiving and considering it.

Both defendants contend the circuit court erred in its interpretation of MCL 247.44; MSA 9.54 by focusing on the best interest and welfare of the public and comparing the existing road with the proposed road to decide that there was no reasonable objection to the alteration. Defendants claim the language of the statute, which prevents circuit court approval of a proposed alteration unless "it shall satisfactorily appear to the court that there is no reasonable objection thereto, and that it is necessary for the best interest and welfare of the public”, required the court to determine first that there was no single, isolated nonfrivolous objection to the alteration before considering the best interest and welfare of the public and before comparing the relative benefits and detriments of the proposed alteration. Defendants further argue that since the alteration would eliminate the scenic beauty of the existing route, there was the requisite reasonable objection to the alteration and the circuit court should have denied approval to the alteration.

On its face, defendants’ argument has the appeal of simplicity. But taken to its logical conclusion, the argument reduces the statute to a useless enactment. Presumably, every road within 5 rods of a lake has some scenic, historic or public access value. If an isolated objection based on one of these grounds is a reasonable objection under the act, as defendants suggest, it would be virtually impossible to alter any road near a lake, even though the alteration might be in the best interest and welfare of the public. We do not believe the Legislature intended this result, and we do not require circuit court judges to wear evidentiary blinders in determining whether or not the statutory "reasonable objection” exists.

The term "reasonable objection”, as used in the act, is a term of art. It requires circuit judges to consider all the circumstances of the case to determine if there is a reasonable objection. The phrase "all the circumstances of the case” includes, but is not limited to, a comparison of the scenic, historic and public access values of the existing road and the proposed alternative; consideration of the safety features of the existing road and the proposed alternative; recognition of any relevant cost factors; and an evaluation of the best interest and welfare of the public.

If there are no reasonable objections, a circuit court must still determine that the alteration is necessary for the best interest and welfare of the public before approving the change. Where the petitioners do not show that the alteration is necessary for the best interest and welfare of the public, it is entirely possible that a court could deny an alteration, even though there are no reasonable objections to the alteration.

On the other hand, if there are reasonable objections to the alteration, we find it difficult to imagine a situation in which the proposed alternative still would be necessary for the best interest and welfare of the public.

In the present case, the circuit judge determined there were no reasonable objections after considering all the circumstances of the case. Thereafter, the judge concluded that the proposed alteration was in the best interest and welfare of the public. The judge’s approach was proper.

Finally, defendants claim that the circuit court’s conclusions that there were no reasonable objections to the alteration and that the alteration was necessary for the best interest and welfare of the public were not supported by the evidence. Defendants’ major objection to the alteration was the loss of a scenic drive along the shore of the lake. Defendants also claimed that the safety hazards of the existing route were overstated and could be corrected.

As previously indicated, we must determine if the circuit judge’s findings were clearly erroneous. GCR 1963, 517.1. A finding is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Tuttle v Dept of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).

The circuit judge patiently heard a great deal of testimony from 17 witnesses. On March 6, 1978, five witnesses testified in favor of the alteration. An Abbey Homes realtor, the city attorney and the city chief of police all discussed the dangerous nature of the existing route and recommended the change. However, the chief of police admitted that the safety hazards of the existing route were minor compared to other city traffic problems. The realtor also stated that the proposed route offered a better view of the lake and its island than the present route, which is bordered by thick foliage.

Thereafter, six witnesses testified against the alteration. Four witnesses, including Messrs. Wilcox and Casey, stated that the safety factor was being exaggerated. But Mr. Wilcox did say the existing road should be improved. Additionally, four witnesses, including Messrs. Wilcox and Casey, testified to the scenic value of the existing road and their desire to retain the present route.

On May 24, 1978, six more witnesses presented statements in favor of the proposed alteration. All six stated that the change was necessary to make Old Orchard Trail a safer road. One witness testified that the view from the proposed route would be no less beautiful than that from the present route. Three witnesses, including two civil engineers, claimed that the proposed route would enhance the public’s view of the lake.

After hearing and evaluating this testimony, as well as photographs and drawings of the area, the judge approved the alteration. Our careful review of the record does not leave us with a definite and firm conviction that a mistake was committed.

It is apparent that the witnesses who testified against the alteration had genuine and legitimate concerns regarding the loss of a scenic drive. But, under all the circumstances of the case, their scenic loss objection was not a reasonable objection as that term is used in the act and applied by the trial judge in her findings of fact. The evidence preponderates in favor of the conclusion that the scenic view on Old Orchard Trail will be enhanced by the change. Additionally, the recommended alteration will improve the overall safety of the Old Orchard Trail-Pontiac Trail area. Therefore, the judge’s determinations that there were no reasonable objections to the alteration and that the change was necessary for the best interest and welfare of the public were not clearly erroneous.

Affirmed. No costs, the interpretation of a statute being involved.

       While the review provision of the act provides for review by certiorari, see MCL 247.45; MSA 9.55, the act was passed in 1927. Since then we have been given jurisdiction on appeals from all final judgments of the circuit courts, MCL 600.308(1); MSA 27A.308(1). The Michigan Supreme Court, through its rule making power, see Const 1963, art 6, § 10, MCL 600.223(2)(a); MSA 27A.223(2)(a), has replaced the writs of certiorari with limited complaints for superintending control, GCR 1963, 711, and has provided for civil appeals by right to this Court from all final judgments of the circuit courts, GCR 1963, 806.1. Since superintending control is not necessary in this case, and this appeal properly comes to us by right, see GCR 1963, 711.2 and 806.1, we apply the usual standards of review.

       "* * * No man is an Hand, intire of it selfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; It tolls for thee.” John Donne, Meditation XVII, in Devotions Upon Emergent Occasions (1624).

       We are not unmindful of the oft-amended and now repealed plat acts and their use of language similar in some respects to that in MCL 247.44; MSA 9.54. See 1915 CL 3355, and MCL 560.62; MSA 26.492. Nor have we ignored Story & Clark Piano Co v Ottawa Circuit Judge, 212 Mich 1; 179 NW 254 (1920), In re Spears, 227 Mich 525; 198 NW 952 (1924); or Yonker v Oceana Cty Road Comm, 17 Mich App 436; 169 NW2d 669 (1969), which interpreted the plat acts. But we have specifically avoided drawing an analogy between MCL 247.44; MSA 9.54 and the relevant plat act statutes because the language of the provisions and the stated purposes of the acts are significantly different. Additionally, we have not relied on the above-mentioned cases because, in each instance, public officials objected to the plat change. Here, public officials support the alteration.


author: Bashara, J. N. J. Kaufman, P.J. T. M. Burns, J.

text:
    PEOPLE v DAVIS
    Docket No. 78-2098.
    Submitted January 3, 1979, at Detroit.
    Decided April 16, 1979.
    Esau Davis was convicted, on his plea of guilty, of breaking and entering a motor vehicle with the intent to steal property valued over five dollars, Recorder’s Court of Detroit, James Del Rio, J. Subsequently, a supplemental information was filed charging the defendant as an habitual offender. The defendant was convicted as an habitual offender and was given a supplemental prison sentence. The defendant appeals, alleging 1) that his guilty plea must be reversed because the trial court failed to inform him specifically of his right to court appointed counsel throughout the entire criminal proceeding in the event of his indigency, 2) that an in-court fingerprinting of the defendant constituted unfair surprise and did not allow defense counsel adequate time to prepare for cross-examination, and 3) that it was error to allow two convictions for attempted larceny in a building to be considered as prior felony convictions since they are misdemeanors. Held:

    1. There was no need for the trial court to inform the defendant of his rights at each proceeding after the arraignment since the defendant appeared with counsel.

      References for Points in Headnotes

       20 Am Jur 2d, Courts § 82.
    21 Am Jur 2d, Criminal Law §§ 313, 314, 317.
    Accuseds’ right to counsel under the Federal constitution—Supreme Court cases. 18 L Ed 2d 1420.
    Duty to advise accused as to right to assistance of counsel. 3 ALR2d 1003.

       21 Am Jur 2d, Criminal Law §§ 368, 369.
    Fingerprints, palm prints, or bare footprints as evidence. 28 ALR2d 1115.

       21 Am Jur 2d, Criminal Law §§ 18, 19.
    50 Am Jur 2d, Larceny §§ 49, 56.

       73 Am Jur 2d, Statutes §§ 42, 103, 155, 156.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §15.
    Determination of character of former crime as a felony, so as to warrant punishment of an accused as a second offender. 19 ALR2d 227.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 6.

      2. The in-court fingerprinting was a proper exercise of discretion because the question of identity was relevant.
    3. Under the habitual offender statute all convictions for attempts to commit felonies are viewed as felony convictions even though the attempt crime itself may be only a misdemeanor.
    Affirmed.
    N. J. Kaufman, P.J., concurred. He is of the opinion that since attempted larceny in a building may be punished by two years in prison, it is a felony under the definition of "felony” in the Code of Criminal Procedure, and, therefore, a prior conviction for attempted larceny in a building may be used to support a conviction under the habitual offender statute. He is also of the opinion that the language of the habitual offender statute requires the conclusion that all attempts to commit felonies, whether themselves misdemeanors or felonies, are covered by the statute.
    T. M. Burns, J., concurred. He agrees that the defendant’s two prior convictions for attempted larceny in a building fall within the habitual offender statute and may be used to augment punishment in this case. He adds, however, that he questions the wisdom of the prosecutor in using the statute this way in this particular case because very little protection is afforded the public by the augmented sentence.
    Opinion of the Court
    1. Criminal Law — Constitutional Law — Right to Counsel — Court Rules.
    The requirement that a court affirmatively advise a defendant of his right to counsel at each proceeding after the defendant’s arraignment is applicable at a subsequent proceeding only if the defendant actually appears without counsel (GCR 1963, 785.4[2]).
    2. Constitutional Law — Criminal Law — Fingerprinting — Identification.
    Fingerprinting is a matter of identification and not incrimination.
    3. Constitutional Law — Criminal Law — In-Court Fingerprinting — Discretion.
    Permitting an in-court fingerprinting of a defendant is within the discretion of the trial judge when the procedure is relevant to an issue at hand.

      4. Criminal Law — Attempts — Misdemeanors — Larceny in a Building — Statutes.
    A criminal statute dealing with attempts specifies that an offender convicted of attempting to commit an offense which is punishable in the state prison for a term less than five years or imprisonment in the county jail or by fine is guilty of a misdemeanor; therefore, since larceny in a building is a felony punishable by a prison term not to exceed four years, an attempted larceny in a building is punished as a misdemeanor (MCL 750.92, 750.360, 750.503; MSA 28.287, 28.592, 28.771).
    5. Statutes — Construction.
    Every legislative act is presumed to be constitutional and the purpose of the legislation is a factor for consideration when construing a statute.
    6. Criminal Law — Habitual Offenders — Prior Convictions — Attempts — Felonies — Statutes.
    The habitual offender statute expresses no requirement that prior convictions for "attempts to commit felonies” must in themselves constitute felonies; therefore a prior misdemeanor conviction for an attempt to commit larceny in a building may be the basis for an information charging a defendant as an habitual offender (MCL 769.12 et seq.; MSA 28.1084 et seq.)..

    7. Criminal Law — Habitual Offender Statute — Felonies — Attempted Felonies — Misdemeanors —■ Statutes.
    Attempts to commit felonies, while they may be punishable as misdemeanors, are encompassed by the habitual offender act because an attempt to commit a felony requires the same intent as the commission of the felony itself (MCL 769.12; MSA 28.1084).
    Concurrence by N. J. Kaufman, P.J.
    8. Larceny — Attempts — Felonies — Habitual Offender — Statutes.

      Attempted larceny in a building may be punished by two years in prison; therefore, attempted larceny in a building is a felony for purposes of the Code of Criminal Procedure and the habitual offender statute (MCL 769.12; MSA 28.1084).

    Concurrence by T. M. Burns, J.
    9. Criminal Law — Habitual Offender — Supplemental Information — Attempts — Use of Court’s Time.

      The time of a court and a prosecutor’s office could be put to

      better use than pursuing an habitual offender information against a defendant where two of the prior convictions relied upon for the information are convictions of attempt crimes well in the past and the other two convictions are even further in the past and where very little protection is afforded the public by the augmented sentence.

      Frank J. Kelley, Attorney General, Robert Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Stephen H. Boak, Assistant Prosecuting Attorney, Director, Prosecutor’s Repeat Offender Bureau, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.

      Alvin C. Sallen, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and T. M. Burns and Bashara, JJ.
   Bashara, J.

Defendant appeals from a plea-based conviction of breaking and entering a motor vehicle with the intent to steal property valued over five dollars, MCL 750.356(a); MSA 28.588(1), and his subsequent conviction as an habitual offender, MCL 769.12; MSA 28.1084.

The court found at the habitual offender hearing that the defendant had been previously convicted of armed robbery, attempted breaking and entering of a motor vehicle, and two attempted larcenies in a building.

A question of identity arose during cross-examination, since two of the files were under the name of Esau Davis, and two in the name of Esau Davis, Jr., with none of the files listing a specific date of birth.

A Detroit fingerprint identification officer was called to testify regarding fingerprints in the aforementioned files. The prosecutor requested that defendant’s thumbprints be taken as a basis for comparison. Defendant objected to this action, asserting self-incrimination and claiming such a procedure should have been undertaken at an earlier stage of the proceeding.

The court overruled defendant’s objection after a recess, and ordered the fingerprints taken. These prints and the earlier prints were identified as belonging to the same person.

Defendant first claims that the guilty plea must be reversed because the trial court failed to inform him specifically of his right to court appointed counsel throughout the entire criminal proceedings in the event of his indigency.

GCR 1963, 785.4(2) requires the court to affirmatively advise defendant of his right to counsel at each proceeding after the arraignment only if the defendant actually appears without counsel.

In this case, counsel appeared with defendant when he waived his right to a formal arraignment and at the guilty plea proceeding. Counsel also indicated to the court that he had advised defendant of his constitutional rights. Therefore, this claim is without merit.

Defendant’s second contention is that the in-court fingerprinting constituted unfair surprise and did not allow his counsel adequate time to prepare for cross-examination.

Fingerprinting is a matter of identification and not incrimination. People v Davis (App for Reh), 17 Mich App 615; 170 NW2d 274 (1969), Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966).

Permitting an in-court fingerprinting is within the discretion of the trial judge when the procedure is relevant to an issue at hand. People v Chimovitz, 237 Mich 247, 251; 211 NW 650 (1927), People v Auerbach, 176 Mich 23, 45; 141 NW 869 (1913). As stated by the Michigan Supreme Court in People v Les, 267 Mich 648, 652; 255 NW 407 (1934):

"Practically all the decisions in which the question has been considered have held that evidence as to the correspondence of fingerprints is admissible to prove identity. See Powell v State, 50 Tex. Cr. R. 592 (99 S.W. 1005); Brown v State, 76 Tex. Cr. R. 316 (174 S.W. 360); and State v Miller, 71 N.J. Law, 527 (60 Atl. 202).”

A question of identity being raised, the fingerprinting was a relevant procedure. Moreover, the record indicates the proceeding was delayed after the request to fingerprint was made, mitigating any claim of surprise. If anything, defendant’s rights were protected by insuring that a proper identification was made.

Defendant’s final contention is that it was error to allow the two convictions for attempted larceny in a building to be considered as prior felony convictions, since they are misdemeanors.

The habitual offender statute, MCL 769.12; MSA 28.1084, states:

"A person who after having been 3 times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country which if committed within this state would be felonious, commits any felony within this state is punishable upon conviction.”

The statute dealing with attempts, MCL 750.92; MSA 28.287, provides in part:

"If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than five years or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor.”

Larceny in a building is a felony punishable by a prison term not to exceed four years, MCL 750.360; MSA 28.592, MCL 750.503; MSA 28.771. Thus attempted larceny is punished as a misdemeanor.

It is well settled that when construing statutes every legislative act is presumed to be constitutional and the purpose of the legislation a factor for consideration. Thomas v Consumers Power Co, 58 Mich App 486, 495; 228 NW2d 786 (1975), Wayne County Republican Committee v Wayne County Board of Comm’rs, 70 Mich App 620, 625; 247 NW2d 571 (1976).

The purpose of the habitual offender statute is to punish recidivists, the focus being on the status of the defendant. The substance of the offense, not the punishment prescribed, is the primary consideration. Cf. Salgado v United States, 277 F2d 653 (CA 1, 1960), Taylor v United States, 333 F Supp 1067 (ED Miss, 1971).

MCL 769.12 expresses no requirement that prior convictions for "attempts to commit felonies” must in themselves constitute felonies. Therefore, a prior misdemeanor conviction for attempt to commit larceny in a building may be the basis for an information under MCL 769.12 et seq.; MSA 28.1084 et seq.

Defendant claims such a statutory construction violates equal protection. He argues that an attempted felony committed in a foreign jurisdiction where the crime was deemed by law to be a misdemeanor would not be counted as a prior offense under the Michigan statute.

The statute, in considering crimes committed in another jurisdiction, does not take into account the label affixed to the crime but whether the act was "felonious”. The term "felonious” connotes intent. Therefore, attempts to commit felonies, while they may be punishable as misdemeanors, would apply to the act because an attempt to commit a felony requires the same intent as the commission of the felony itself.

Affirmed.

N. J. Kaufman, P.J.

(concurring). I reluctantly concur. The Code of Criminal Procedure, MCL 760.1 et seq.; MSA 28.841 et seq., of which the habitual offender statute is a part, defines felony as "an offense for which the offender, upon conviction, may be punished by death or by imprisonment for more than 1 year or an offense expressly designated by law to be a felony”. MCL 761.1(g); MSA 28.843(g).

Attempted larceny in a building may be punished by two years in prison, MCL 750.360; MSA 28.592, MCL 750.503; MSA 28.771, MCL 750.92; MSA 28.287. Therefore, attempted larceny in a building is a felony for purposes of the Code of Criminal Procedure and the habitual offender statute. See People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979), People v Hooks, 89 Mich App 124; 279 NW2d 598 (1979).

Alternatively, the habitual offender statute covers "A person who * * * [has] been three times convicted within this state of felonies or attempts to commit felonies”. MCL 769.12; MSA 28.1084.

Even if we label attempted larceny in a building a misdemeanor, see MCL 750.92; MSA 28.287, the habitual offender statute refers to felonies and all attempts to commit felonies. The statute does not distinguish between those attempts which are themselves misdemeanors and those which are felonies. Further, if the Legislature meant to include in the statute only those attempts which were labelled felonies in the penal code, MCL 750.1 et seq.; MSA 28.191 et seq., there was no need to add the phrase "or attempts to commit felonies” when they had already included felonies. Therefore, the language of the habitual offender statute requires me to conclude that all attempts to commit felonies, whether themselves misdemeanors or felonies, are covered by the statute.

T. M. Burns, J.

(concurring). For the reasons stated in Judge Kaufman’s concurrence I am also compelled to reach the conclusion that defendant’s two prior convictions for attempted larceny in a building, MCL 750.360, 750.503, 750.92; MSA 28.592, 28.771, 28.287, fall within the habitual offender statute, MCL 769.12; MSA 28.1084, and may be used to augment punishment in this case. I write separately to question the wisdom of using the statute in this way.

The prior convictions for attempted larceny in a building occurred in 1963 and 1970. The disposition on those charges is not stated, but they carried a maximum of two years in prison. The current charge of breaking and entering a motor vehicle with intent to steal property valued in excess of $5 carried a maximum of five years and the court originally imposed a sentence of only one year, eight months to five years.

The trial court must have been aware of defendant’s prior record at the time the original sentence was imposed. However, relying on the two attempt convictions in dispute and two convictions which are even older, the sentence was increased to 10 to 20 years under the habitual offender provisions. It seems both the court’s time and the prosecution’s could have been put to better use than pursuing the habitual information in this case without a significant decrease in the protection afforded the public.


text:
    PEOPLE v GOSS
    Docket No. 78-2119.
    Submitted January 17, 1979, at Detroit.
    Decided April 17, 1979.
    Herbert Goss was arrested when his companion was stopped on suspicion of being in violation of Detroit’s curfew ordinance. When the police approached, Goss reached toward his waistband and a gun fell to the ground. Goss was charged with carrying a concealed weapon. Before trial he moved to suppress the evidence and to quash the information. The Recorder’s Court of Detroit, George W. Crockett, Jr., J., granted the defendant’s motion and the people appeal. Held:

    The trial court erred in its determination that the initial stop of defendant was unlawful and the evidence, therefore, unlawfully seized. There is no indication in the record that the defendant was ever requested by the police to stop. Rather, they asked his companion to stop to question her about her age. Therefore, the defendant has no standing to question the validity of the stop. When the defendant reached into his waistband the police thought he was reaching for a gun and ordered him to freeze. The police actions up to that point were justified; therefore, the seizure of the gun when it dropped was not unreasonable.
    Reversed.
    1. Criminal Law — Evidence — Suppression of Evidence — Clear Error.
    A trial court’s order to suppress evidence and dismiss the charges against a criminal defendant is reviewed using a standard of whether the finding is "clearly erroneous”.
    2. Appeal and Error — Standard of Review — Clear Error.
    A trial court’s finding is “clearly erroneous” where, although there is evidence to support the finding, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been made.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error §§ 839-841.

       4 Am Jur 2d, Appeal and Error §§ 839-841.
    76 Am Jur 2d, Trial § 1242.

      3. Searches and Seizures — Arrest — Valid Stop — Standing to Question.
    A defendant, charged with carrying a concealed weapon after he dropped a gun from his waistband when confronted by police, has no standing to question the validity of the initial stop where the police requested the defendant’s companion to stop upon suspicion of the companion being in violation of a curfew ordinance; the police ordered defendant to freeze when he reached under his coat and the gun then dropped to the ground, and because the police officers’ actions were reasonable up to that point, the seizure of the gun was not unreasonable.

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

      Jay S. Kalish, Legal Aid and Defender Association of Detroit, for defendant on appeal.
    Before: D. C. Riley, P.J., and J. H. Gillis and MacKenzie, JJ.
   J. H. Gillis, J.

Defendant was charged with carrying a concealed weapon. MCL 750.227; MSA 28.424. After he was bound over for trial defendant brought a motion to suppress evidence and quash the information. The trial court granted defendant’s motion and the prosecutor appealed. In an unpublished per curiam opinion this Court remanded the case for additional findings. Docket No. 77-1139 (released March 9, 1978). The trial court carried out these instructions in an order dated April 25, 1978. The people now appeal from that order.

The parties stipulated that the factual basis for determination of the motion was contained in the preliminary examination transcript. That evidence was provided by the arresting officer’s testimony. He stated that at approximately 1:30 a.m. on November 12, 1976, he and his partner spotted defendant and a female companion walking along Mack Avenue in the City of Detroit. According to the officer the female "appeared young looking”. Suspecting the woman was in violation of Detroit’s curfew ordinance, the officers pulled their car to the curb and, in the officer’s words, "told the female to stop”. At that point defendant made a movement toward his waistband, prompting the officers to draw their weapons and order him to freeze. As defendant stopped, a gun fell out of his coat. He was arrested on the instant charge and the two persons were transported to the station. There it was discovered that the woman was 19 years old and she was released.

The trial court based its order on two distinct grounds. First, the court found the officer’s testimony that he was investigating a curfew violation to be "inherently incredible” under the factual situation presented. The trial court pointed out that the female was 19 years old and accompanied by the defendant, an adult, and the officer should have been mindful of the exemption from the curfew ordinance for "a minor accompanied by * * * other adult person having the care or custody of the minor”. Detroit Municipal Code, ch 36, art 3. The court, therefore, concluded that the stop was not justified under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

The trial court went on to rule that even if the witness were believed, the Detroit curfew ordinance is unconstitutional. Hence, the stop was unsanctioned and the evidence was obtained as a direct result of a violation of defendant’s constitutional rights.

In reviewing a trial court’s order to suppress evidence and dismiss the charges, this Court applies a "clearly erroneous” standard. People v Ulrich, 83 Mich App 19; 268 NW2d 269 (1978), People v Robertson, 81 Mich App 446; 265 NW2d 365 (1978), People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977). A finding is "clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been made. People v Hummel, 19 Mich App 266, 270; 172 NW2d 550 (1969).

In this case we are convinced that a mistake has been made. The trial court’s decision to suppress the gun was based on its determination that the initial stop was unlawful.

In People v White, 84 Mich App 351; 269 NW2d 598 (1978), two officers asked two males to get out of a car. The defendant, a female, had been sitting on the passenger side of the car. She was not requested to exit the car, but did so on her own. As she approached one of the officers, she reached as if to go into her purse. She was told not to go into the purse and when she did not stop the officer grabbed her hand. At that point he saw a revolver in the purse. In reversing the trial court’s order suppressing the evidence, this Court stated:

"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.” 84 Mich App at 354.

In the instant case, the arresting officer testified, "We told the female to stop” and "We asked her to stop and show age and identification”. There is no indication that defendant was ordered to stop. Hence, we conclude that defendant has no standing to question the validity of the initial stop.

When defendant reached into his waistband under his coat the officers thought he was going for a gun and ordered him to freeze. As in White, supra, the officers’ actions at this point were justified under Terry v Ohio, supra. Since the officers’ actions were reasonable at this point, the seizure of the gun after defendant dropped it was not unreasonable.

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

Reversed.