author: N. J. Kaufman, J. Danhof, C.J.,

text:
    PEOPLE v MOORE
    Docket No. 78-4651.
    Submitted April 17, 1979, at Detroit.
    Decided July 10, 1979.
    Clarence Moore was convicted in 1967 of armed robbery and assault with intent to commit murder and was sentenced to two concurrent terms of life imprisonment. Moore appealed his convictions to the Court of Appeals, which affirmed. 13 Mich App 320 (1968). Moore later filed a petition in the Court of Appeals seeking to have his sentences set aside, which was denied by the Court’s order of February 9, 1977. Moore filed a complaint for superintending control in the Michigan Supreme Court, which treated the complaint for superintending control as an application for leave to appeal; and, in lieu of leave to appeal, that Court remanded for resentencing because the record disclosed that counsel was not present at sentencing and presence of counsel had not been waived. 402 Mich 805 (1977). On remand, the Detroit Recorders Court, Joseph A. Gillis, J., heard arguments of counsel and a statement by defendant as to the nature of defendant’s activities while in prison; however, no updated presentence report was prepared. Defendant was again sentenced to concurrent terms of life imprisonment. Defendant appeals. Held:

    Remand for resentencing is mandated by the failure of the sentencing court to secure an updated presentence report, including information as to the defendant’s conduct while in prison, prior to resentencing.
    Danhof, C.J., dissented. He would hold that resentencing is not mandated by the failure of the trial court to secure an updated presentence report, since the record clearly indicates that the sentencing court was adequately apprised of defendant’s background. Upon resentencing following a determination that the prior sentence was invalid the sentencing court may consider the defendant’s behavior in prison in determining the new sentence. The Court of Appeals is not free to substitute its judgment for that of the sentencing court as to the weight to be given to those factors or as to the propriety of the particular sentence. He would affirm.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 527, 529, 569 et seq.

    Absence of counsel for accused at time of sentence as requiring vacation thereof or other relief. 20 ALR2d 1240.

       5 Am Jur 2d, Appeal and Error §§ 938, 973.

      Opinion op the Court
    1. Criminal Law — Sentences — Resentencing ■— Updated Presentence Report •— Prison Behavior.
    Remand for resentencing is mandated by the failure of the sentencing court to secure an undated presentence report, including information as to defendant’s conduct while in prison, prior to resentencing in accordance with an order of the Supreme Court remanding for resentencing because of the lack of counsel at the original sentencing.
    Dissent by Danhop, C.J.
    2. Criminal Law — Sentences — Resentencing — Updated Presentence Report.

      Resentencing is not mandated because of the failure of the sentencing court to secure an updated presentence report prior to resentencing in accordance with an order of the Supreme Court remanding for resentencing because of lack of counsel at the original sentencing where the record indicates that the sentencing court on remand was adequately apprised by defense counsel and the defendant of the defendant’s background.

    3. Appeal and Error — Criminal Law — Sentences.

      The Court of Appeals is not free to substitute its judgment for that of the sentencing court as to the weight accorded to any factor in defendant’s background or as to what is a proper sentence for a particular defendant.

    4. Criminal Law — Sentences — Resentencing — Commutation of Sentences — Executive Power — Prison Behavior.
    A sentencing court, in resentencing on remand by the Supreme Court for lack of assistance of counsel at the original sentencing, may consider defendant’s behavior while in prison under the original invalid sentence and may modify that previous sentence without usurping the executive branch’s exclusive prerogative to commute or modify sentences, since the vacation of the original sentence rendered it void and the sentence on resentencing is not an impermissible modification of a prior valid sentence.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Paul G. Bruno, Assistant Prosecuting Attorney, for the people.

      Jack J. Kraizman, for defendant on appeal.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   N. J. Kaufman, J.

We accept the facts as presented by Chief Judge Danhof in his dissent and generally agree with his presentation of the law. Additionally, for the reasons stated in the dissent, we specifically note our disagreement with People v Allen, 79 Mich App 100; 261 NW2d 225 (1977). However, under the instant facts, we feel compelled to remand the case for resentencing and direct the trial judge to secure an updated presentence report prior to resentencing. See my dissent in People v Triplett, 91 Mich App 82; 283 NW2d 658 (1979).

When the Supreme Court remanded this case for resentencing because defendant was not assisted by counsel at the original sentencing, they meant just that. At the resentencing, defendant was entitled to an updated presentence report and an opportunity for allocution. Those steps were necessary to insure that the trial judge was fully and accurately acquainted with defendant’s background. See MCL 771.14; MSA 28.1144, People v Brown, 393 Mich 174; 224 NW2d 38 (1974), People v Lee, 391 Mich 618, 634-635; 218 NW2d 655 (1974), People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973).

Defense counsel and defendant presented some evidence of defendant’s prison conduct to the re-sentencing court, but it is not at all clear that the court considered this information in resentencing defendant to the same prison terms he had received more than 10 years before. In light of the court’s statement that defendant was being sentenced nunc pro tunc, it is possible that the judge ignored defendant’s prison conduct altogether. An updated presentence report would have assured due consideration of defendant’s prison conduct.

Remanded for resentencing.

D. C. Riley, J., concurred.

Danhof, C.J.,

(dissenting). The sole question on appeal is whether, upon remand for resentencing, the trial judge erred in failing to consider, as a mitigating circumstance, defendant’s prison behavior between the time when defendant’s sentence was originally imposed and the date of the resentencing hearing. While I conclude that the judge had a duty to consider this aspect of defendant’s background in resentencing him, I believe that the judge did so adequately and, therefore, register my dissent from the majority decision to remand for resentencing.

On June 29, 1967, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and of assault with intent to commit murder, MCL 750.83; MSA 28.278, following a bench trial. On July 13, 1967, Detroit Recorder’s Court Judge Joseph A. Gillis sentenced defendant, who was not assisted by counsel, to two concurrent terms of life imprisonment. This Court affirmed defendant’s conviction on September 24, 1968, and also denied his later petition to set aside his sentence in an order issued February 9, 1977. The Michigan Supreme Court thereafter reviewed defendant’s in pro per complaint for superintending control, treating it as an application for leave to appeal this Court’s order of February 9, 1977. On November 23, 1977, the Supreme Court (402 Mich 805 [1977]) remanded for resentencing on the grounds that defendant had not been assisted by coúnsel at his prior sentencing hearing nor had he waived his right to counsel. People v Dye, 6 Mich App 217; 148 NW2d 501 (1967).

On January 13, 1978, defendant, assisted by counsel, appeared for resentencing before Judge Gillis. The judge inquired of defense counsel whether he had read the presentence report, to which counsel responded affirmatively and asserted that he believed the report to be factually correct. Counsel then added that defendant had already been incarcerated in Jackson State Prison for more than ten years as a result of his earlier, now invalidated sentence, and that counsel wished to briefly review, for the judge’s benefit, some of the reports counsel had received from prison supervisory personnel regarding defendant’s progress toward rehabilitation. According to the reports, defendant had positively adjusted to the institutional setting, had acquired several vocational skills, had gotten married in 1977, had displayed a good attitude toward his work, and had generally made marked progress toward social rehabilitation. Counsel asked the judge to consider this evidence in imposing a lower sentence on defendant. Defendant also added that he had matured over the ten years of his imprisonment and that he felt he could now become a good citizen. The judge responded as follows:

"THE COURT: I’m quite sure an attorney was present before. The Corrections Commission has authority to release him this afternoon if they wish, and they know they have. They have lived with Mr. Moore for the past ten years, and apparently they have not exercised the discretion which the legislature and the Court gave them.
"The sentence of the Court on Count I will be life, on Count II life, and this will be nunc pro tunc as of July 13, 1967, the original sentence date. He will be given credit for 94 days served.”

Defendant on appeal argues that the court committed reversible error by ignoring defendant’s progress toward rehabilitation as a circumstance mitigating the need for reimposition of defendant’s original sentence and that, rather than leaving full responsibility for determining defendant’s date of prison release to the Department of Corrections, the judge had a duty to consider defendant’s individual circumstances as of the date of resentencing.

I recognize and indorse the modern penal concept that sentences should be individualized to fit the particular circumstances of the case and of the offender, thereby striking a balance between society’s need for protection, along with deterrence of criminal behavior, and its interest in rehabilitating the individual defendant. People v McFarlin, 389 Mich 557, 574-575; 208 NW2d 504 (1973). In order to properly carry out their sentencing function, trial judges must be fully and accurately acquainted with the backgrounds of the offenders. MCL 771.14; MSA 28.1144, People v Brown, 393 Mich 174; 224 NW2d 38 (1974), People v Lee, 391 Mich 618, 634-635; 218 NW2d 655 (1974).

In resentencing defendant, the judge in the instant case apparently relied on the presentence report prepared prior to defendant’s original sentencing hearing ten years before. But notwithstanding the judge’s failure to request an updated report, he did permit defense counsel and defendant to present additional information regarding defendant’s prison behavior during the intervening years. I find no indication that the judge was incorrectly or inadequately apprised of defendant’s background, or that he drew false inferences from the information afforded him.

Beyond insuring the accuracy of the presentence information relied on by the judge and his compliance with statutory limitations, our appellate review of the judge’s use of sentencing discretion is very limited. MCL 769.1; MSA 28.1072, People v Burton, 396 Mich 238, 243; 240 NW2d 239 (1976). This Court is not free to substitute its judgment as to what constitutes a proper sentence for a particular defendant. People v Almond, 67 Mich App 713, 719; 242 NW2d 498 (1976), People v Thomas Ross, 73 Mich App 287, 292; 251 NW2d 268 (1977). Contrary to defendant’s contention, I do not interpret the judge’s above-quoted remarks as necessarily implying a refusal to even consider defendant’s prison behavior as a factor in resentencing. The judge did allow defense counsel to update defendant’s presentence report. Having listened to the comments, the judge had discretion to assign great, little or no weight to defendant’s allegedly good prison behavior in resentencing him. I am not willing to, and indeed cannot, dictate to the sentencing judge the importance he should accord to any one factor in defendant’s background.

Although I do not accept defendant’s argument on appeal, I would like to emphasize that the sentencing judge could consider defendant’s prison behavior as a factor supporting imposition of a different sentence on resentencing. In doing so, I register my disagreement with the prior ruling by this Court in People v Allen, 79 Mich App 100; 261 NW2d 225 (1977), a case with very similar facts to those in the case at bar. This Court held in Allen that the sentencing judge could not, on resentencing, take into account defendant’s prison behavior since the imposition of his original sentence because the power to commute or modify previously imposed sentences rests in the executive branch and not in the judiciary. People v Meservey, 76 Mich 223; 42 NW 1133 (1889), People v John Williams, 65 Mich App 531; 237 NW2d 545 (1975). Modifying an earlier imposed sentence on the basis of good prison behavior would be tantamount to usurping an exeuctive prerogative. In the absence of indications that defendant’s first sentence was overly harsh or unrealistic, the trial court could not lower it on resentencing for the same conviction.

It is well established that the judiciary has no power to alter a prior valid sentence because such an act would impinge impermissibly on the power of pardon and commutation granted exclusively to the governor under the constitution. Const 1963, art 5, § 14. Moore v Parole Board, 379 Mich 624; 154 NW2d 437 (1967), People v Fox, 312 Mich 577; 20 NW2d 732 (1945). But in both Allen and the instant case, defendants’ sentences had been vacated because of, respectively, the trial court’s failure to grant defendant the right to allocution and lack of assistance of counsel at the sentencing hearing. If the originally imposed sentences were void, the sentencing judges were in effect imposing new sentences on defendants, even if ordered nunc pro tunc, rather than impermissibly altering previously imposed and still valid sentences. See Elliott v Dep’t of Corrections, 343 Mich 681; 73 NW2d 298 (1955). I find no usurpation of a constitutionally based executive prerogative in changing a defendant’s sentence on the basis of intervening events under these circumstances.

Finally, it may seem anomalous to allow a sentencing judge in the exercise of his or her discretion to impose nunc pro tunc a second sentence, differing from the original but invalid sentence, where both sentences arise from the same conviction and where the change in the second sentence is based solely on conduct occurring after imposition of the first sentence. But I find it even more anomalous to rule that, on resentencing, a judge must ignore any alteration, for better or for worse, in defendant’s character or behavior, no matter how many years have passed since imposition of the original vacated sentence. Particularly where reduction of a sentence might be in order, such a ruling would unduly emphasize the purely punitive aspect of sentencing at the expense of maximizing the individual’s demonstrated rehabilitative potential.

I would affirm.

       Defendant also argues that he is entitled to remand for a Tucker hearing because he was not represented by counsel at the sentencing hearing following two convictions prior to the ones directly involved on this appeal. United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). In addition, he alleges other errors rendering those two prior convictions constitutionally infirm. I have reviewed defendant’s contentions along with the allegedly supportive docket entries attached, and find that the record as presented does not support his arguments. See People v Moore, 391 Mich 426, 438-440; 216 NW2d 770 (1974).

       Compare the Supreme Court’s statement in North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), reaffirming that a trial judge has power on reconviction of a defendant to impose a sentence greater or lesser than the original sentence in light of events subsequent to the first trial, including defendant’s prison behavior, that may have thrown new light on defendant’s background and rehabilitative potential. Citing Williams v New York, 337 US 241, 247; 69 S Ct 1079, 1083; 93 L Ed 1337, 1341 (1949), the Court asserted:
      "The freedom of a sentencing judge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v New York, supra, that a State may adopt the 'prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.’” 395 US at 723; 89 S Ct at 2079-2080; 23 L Ed 2d at 668.


source: Caselaw Access Project

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

license: Public Domain

text:
    PEOPLE v PRICE (ON REMAND)
    Docket No. 44153.
    Submitted June 12, 1978, at Grand Rapids.
    Decided November 6, 1978.
    On remand, decided July 10, 1979.
    Albert Price, Jr., was convicted of breaking and entering with intent to commit larceny, Saginaw Circuit Court, Joseph R. McDonald, J. He appealed, alleging that a court order to submit fingerprints was issued without probable cause because of an admitted mistake by a police officer in a supporting affidavit. The Court of Appeals reversed the conviction, 86 Mich App 641 (1978). The people applied for leave to appeal to the Supreme Court, which in lieu of granting leave remanded to the Court of Appeals for reconsideration in light of a recent United States Supreme Court decision, 406 Mich 881 (1979). On remand, held:

    There were no allegations of deliberate falsehood or reckless disregard for the truth in the statements made in the affidavit. Proof of an innocent mistake in an affidavit is not sufficient to justify the deletion of the statements involved from the affidavit when reviewing it for the existence of probable cause. Based upon the affidavit as presented to the magistrate the decision that probable cause existed to order the defendant to submit his fingerprints was not an abuse of discretion.
    The previous decision of the Court of Appeals is vacated, and defendant’s conviction and sentence are affirmed.
    1. Searches and Seizures — Search Warrants — Presumption of Validity.
    An affidavit in support of a search warrant is entitled to a presumption of validity; in order to contest that presumption there must be allegations of deliberate falsehood or reckless disregard for the truth, accompanied by an offer of proof.
    References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures §§ 64-70.
    Search warrants: disputing matters stated in supporting affidavit. 5 ALR2d 394.
    Federal court determination of probable cause for search warrant: consideration of oral testimony which was, in addition to affidavit, before officer who issued warrant. 24 ALR Fed 107.

       68 Am Jur 2d, Searches and Seizures §§ 62, 66, 68.

      2. Searches and Seizures — Search Warrants — Affidavits in Support of Warrant — Mistakes — Probable Cause.
    Clear proof of negligent or innocent mistakes in an affidavit supporting a search warrant is not sufficient to justify the deletion of the statements involved from the affidavit when reviewing for the existence of probable cause to issue the warrant.
    3. Appeal and Error — Searches and Seizures — Search Warrants — Probable Cause — Abuse of Discretion.
    The Court of Appeals may not substitute its judgment for that of a magistrate who issued a search warrant unless there has been a clear abuse of discretion in the magistrate’s determination of probable cause.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Peter C. Jensen and Linda Berns Wright, Assistant Prosecuting Attorneys, for the people.

      Kim R. Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   On Remand

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

Defendant was convicted by a jury of breaking and entering with intent to commit larceny contrary to MCL 750.110; MSA 28.305. The case was subsequently appealed to this Court, People v Price, 86 Mich App 641; 273 NW2d 97 (1978), and we reversed his conviction. The people applied for leave to appeal to the Michigan Supreme Court and that Court, in lieu of granting leave to appeal, by its order of March 9, 1979, 406 Mich 881 (1979), remanded the case to the Court of Appeals for reconsideration in light of Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978).

The basis of our decision in Price, supra, was that the order to submit the fingerprints was issued without probable cause, and that the fingerprints taken pursuant to the order and their fruits must be suppressed as violative of US Const, Am IV, and Const 1963, art 1, § 11. The order to submit fingerprints was issued based upon an affidavit which contained the following statement:

"That Juanita Clark stated that Albert Price, Jr. attempted to give her the .25 Caliber gun on August 22, 1975 at Claude’s Bar in Saginaw, Michigan and that she did not take it.” (Emphasis supplied.)

During the course of a hearing on defendant’s pretrial motion to suppress, the affiant acknowledged that this statement was in error. Rather than' "the .25 caliber gun” the statement should have read "a gun”. Relying on People v Broilo, 58 Mich App 547; 228 NW2d 456 (1975), and People v Staffney, 70 Mich App 737; 246 NW2d 364 (1976), the erroneous statement was deleted from the affidavit and our finding that there was no probable cause to issue the order to submit fingerprints was based upon review of the affidavit absent the erroneous statement.

The United States Supreme Court’s decision in Franks v Delaware, supra, held that in order to contest the presumption of validity that an affidavit supporting a search warrant is entitled to, there must be allegations of deliberate falsehood or reckless disregard for the truth, and that these allegations must be accompanied by an offer of proof. Such a preliminary showing would entitle the defendant to a hearing at which, if he can establish by a preponderance of the evidence that the allegations contained were perjurious or made in reckless disregard for the truth, he would be entitled to have the determination of probable cause reviewed with the affidavit’s false material set to one side.

In this instance no allegations of perjury or reckless disregard for the truth were made, but rather defendant based his claim on the fact that the statements were admittedly erroneous. The record reflects the affiant testified in open court that he had unintentionally misrepresented Juanita Clark’s statement to him regarding the gun in question. Rather than "the .25 caliber gun” his statement should have read "a gun”. This misstatement on the affiant’s part was not a deliberate falsehood or statement made in reckless disregard for the truth, but rather an innocent mistake on his part. Franks v Delaware, supra, 438 US at 171, held that clear proof of negligent or innocent mistakes in affidavits is not a sufficient showing to justify the deletion of the statements involved from the affidavits when reviewing for the existence of probable cause. In this instance, we are convinced that our prior decision to delete affiant’s misstatement from the affidavit should no longer be sustained, and our review of the magistrate’s decision to order the submission of fingerprints should be based upon the affidavit as actually presented to him.

Having determined that the misstatement of facts should not have been deleted from the affidavit, we must now determine whether the affidavit justified the magistrate’s determination that there was probable cause to require defendant to submit his fingerprints. This Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause. See People v Iaconis, 29 Mich App 443, 462; 185 NW2d 609 (1971), People v Thomas, 86 Mich App 752, 759; 273 NW2d 548 (1978). The affidavit submitted in this instance indicates that three individuals had been shot and killed on August 21, 1975, at 1414 Mott, Saginaw, Michigan. Juanita Clark was arrested and charged with the murder of two other individuals and a search warrant was executed on August 23, 1975, at her apartment and a .25-caliber automatic handgun was taken. Examinations of bullets from this .25-caliber automatic weapon by the Michigan State Police crime lab indicated that this was the weapon that had been used to commit the three homicides on August 21, 1975. Juanita Clark stated to the affiant that Albert Price, Jr. attempted to give her the .25-caliber automatic handgun on August 22, 1975, at Claude’s Bar in Saginaw and that she did not take it. We find that the trial court, based upon the affidavit submitted to it, did not abuse its discretion in finding that probable cause existed to order defendant to submit his fingerprints. Accordingly, our previous determination that there was no probable cause to require defendant to submit his fingerprints, and our reversal of his conviction based upon this lack of probable cause, is vacated, and defendant’s conviction and sentence are affirmed.

W. Van Valkenburg, J., did not participate.


author: Per Curiam.

text:
    FORD v CITY OF DETROIT
    Docket No. 77-4128.
    Submitted October 10, 1978, at Detroit.
    Decided July 11, 1979.
    Verita Ford, a minor child, broke her leg while playing in a public park operated by the City of Detroit when she stepped through a three-inch space between a slide and wooden platform to which it was attached. Verita’s mother, Terry Ford, brought an action individually and as next friend of Verita against the City of Detroit alleging that the design, manufacture and construction of the slide created a hazard to the safety of those using it and that the slide, as a result, constituted a nuisance. Wayne Circuit Court, Charles Kaufman, J., granted summary judgment to defendant based on the city’s claim of governmental immunity from tort liability. Plaintiff appeals. Held:

    Only nuisances per se and intentionally-created or continued nuisances in fact will defeat a claim of governmental immunity. The existence of a nuisance in fact is a fact question. To establish the necessary intent, a plaintiff must show that the defendant who created or continued the nuisance knew or must have known that harm to the plaintiff was substantially certain to follow as a result of defendant’s actions. Where facts alleged by a plaintiff would at most constitute a nuisance in fact and not a nuisance per se, reversal and remand to the trial court is necessary to determine, as a question of fact, whether the conditions complained of constitute a nuisance in fact and if so, whether the nuisance was intentionally or negligently created.
    Reversed and remanded.
    1. Nuisance — Nuisance Per Se — Nuisance in Fact — Governmental Immunity.
    Governmental immunity does not bar liability for a nuisance per se; the maintenance of a nuisance in fact by a governmental body may also impose liability and overcome any claim of sovereign immunity.

      References for Points in Headnotes

       58 Am Jur 2d, Nuisances § 55.

       58 Am Jur 2d, Nuisances §§ 12, 13, 141.

       58 Am Jur 2d, Nuisances §§ 32, 136.

      2. Nuisance — Nuisance Per Se — Nuisance in Fact — Definitions — Questions of Law — Questions of Fact.
    The distinction between a nuisance per se and a nuisance in fact is an evidentiary one; a nuisance per se is an act, occupation or structure which is a nuisance at all times and under all circumstances; once the act has been proved, the court decides as a matter of law whether the act complained of constitutes a nuisance per se and at that point a defendant’s liability is established; by contrast, a nuisance in fact is an act, occupation or structure which becomes a nuisance because of circumstances and surroundings and whether or not a particular thing is a nuisance in fact is to be resolved by the trier of fact.
    3. Nuisance — Nuisance in Fact — Intentionally-Created Nuisances — Burden of Proof — Questions of Fact.
    Present case precedent establishes that only intentionally-created or continued nuisances in fact will defeat a claim for governmental immunity; the existence of this type of nuisance in fact must also be resolved by the trier of fact; to establish the necessary intent, a plaintiff must show that the defendant who created or continued the nuisance knew or must have known that harm to the plaintiff was substantially certain to follow as a result of defendant’s actions.

      Milan & Miller, P.C. (by Allen S. Miller), for plaintiff.

      Roger E. Craig, Corporation Counsel, George G. Matish, Deputy Corporation Counsel, and Gregory E. Snow, Assistant Corporation Counsel, for defendant.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr. and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiff appeals from the trial court’s grant of summary judgment for the defendant City of Detroit.

While playing in a public park operated by the City of Detroit, plaintiffs minor child broke her leg when she stepped through a three-inch space between a slide and the wooden platform to which it was attached. In her complaint, the plaintiff alleged that the city’s design, manufacture and construction of the slide created a hazard to the safety of those using it and that the slide, as a result, constituted a nuisance. The trial court granted summary judgment based on the city’s claim of governmental immunity from tort liability.

The Supreme Court has recently reexamined the impact of the nuisance doctrine on governmental immunity in Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways and a consolidated case, Fouchia v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978). Although no clear majority view has emerged from these cases, certain points of agreement exist between the five justices who concurred in reversal.

First, it is evident that governmental immunity does not bar liability for a nuisance per se. Furthermore, the maintenance of a nuisance in fact by a governmental body may also impose liability and overcome any claim of sovereign immunity.

The distinction between a nuisance per se and a nuisance in fact is an evidentiary one. A nuisance per se is an act, occupation or structure which is a nuisance at all times and under all circumstances. Once the act has been proved, the court decides as a matter of law whether the act complained of constitutes a nuisance per se. The defendant’s liability at that point is established.

A nuisance in fact, by contrast, is an act, occupation or structure which becomes a nuisance because of circumstances and surroundings. Whether or not a particular thing is a nuisance in fact is to be resolved by the trier of fact.

However, the five members of the Court voting for reversal in both Rosario and Gerzeski disagree as to whether all nuisances in fact may defeat a claim of governmental immunity. One view, represented by Justice Moody’s opinion in Gerzeski, supra, at 154, would hold that only intentionally-created nuisances in fact overcome this claim. The differing theory set out in Justice Fitzgerald’s opinion in Rosario does not gainsay this conclusion; it simply asserts that the distinction between negligently- and intentionally-created nuisances is irrelevant in fixing liability. Gerzeski, supra, at 154. Because the justices adopting the first view constituted the swing votes for reversal in both cases, a cautious reading of these cases persuades us that at present only intentionally-created or continued nuisances in fact will defeat a claim of governmental immunity.

The existence of this type of nuisance in fact must also be resolved by the trier of fact. To establish the necessary intent, a plaintiff must show that the defendant who created or continued the nuisance knew or must have known that harm to the plaintiff was substantially certain to follow as a result of defendant’s actions. Rosario, supra, at 143, fn 2 and Gerzeski, supra, at 161-162.

Applying the above principles to the case at bar we conclude, first, that the facts alleged by plaintiff would at most constitute a nuisance in fact and not a nuisance per se. However, we reverse and remand to the trial court for determination by the trier of fact whether (1) the conditions complained of constitute a nuisance in fact, and (2) if so, whether the nuisance was intentionally or negligently created.

Costs to abide the final outcome.


text:
    LOCAL 1277, METROPOLITAN COUNCIL NO. 23, AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO v CITY OF CENTER LINE
    Docket No. 78-553.
    Submitted January 5, 1979, at Detroit.
    Decided July 11, 1979.
    Leave to appeal applied for.
    A labor dispute between the City of Center Line and its police officers, represented by Local 1277, Metropolitan Council No. 23, American Federation of State, County and Municipal Employees, AFL-CIO, was submitted to arbitration pursuant to statute. The union petitioned the Macomb Circuit Court for enforcement of the arbitration panel’s award, and the city challenged portions of the award. The circuit court, Hunter D. Stair, J., granted the union’s motion for summary judgment and ordered enforcement of the award. The city appeals, alleging that the circuit court proceeded improperly, that the arbitration panel had no authority to deal with the issue of layoffs, and that the statute governing arbitration of labor disputes involving public policemen and firemen is unconstitutional. Held:

    1. The circuit court procedure was proper. The court’s review is of the record made before the arbitration panel, and it is not error to summarily order enforcement of an award where the party opposing enforcement has an opportunity to raise objections and the court has reviewed the record to determine whether the panel acted within its jurisdiction and whether the award is supported by competent, material and substantial evidence on the whole record.
    2. The court erred in ordering enforcement on an economic issue in which the panel rejected both the union’s and the city’s last proposals on the issue.

      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.

       5 Am Jur 2d, Arbitration and Award § 145.
    48A Am Jur 2d, Labor and Labor Relations § 1773.

       5 Am Jur 2d, Arbitration and Award § 167.

       48A Am Jur 2d, Labor and Labor Relations § 1894.

       5 Am Jur 2d, Arbitration and Award §§ 84-88.

      3. The arbitration panel’s award concerning the issue of layoffs was within the panel’s power.
    4. The statute does not unconstitutionally delegate legislative power to a nonlegislative body, nor does the statute deny the city due process or ensure that the chairman of an arbitration panel will be pro-union.
    Affirmed with modification.
    1. Arbitration and Award — Policemen and Firemen — Statutes — Grounds for Challenging Award.
    The policy embodied in the act governing the arbitration of labor disputes involving public firemen and policemen is to provide for the expeditious resolution of disputes; accordingly, the grounds upon which an arbitration award can be challenged are limited to those listed in the statute (MCL 423.231, 423.242; MSA 17.455[31], 17.455[42]).
    2. Arbitration and Award — Police Officers — Review of Record.
    Judicial review of an arbitration award in a labor dispute between a municipal police department and its policemen is limited to review of the record made before the arbitration panel.
    3. Arbitration and Award — Police Officers — Economic Issues — Last Offer — Enforcement of Award ■— Statutes.
    An arbitration panel considering a dispute between a municipal police department and its policemen must accept the last offer of settlement by one of the parties on economic issues; an arbitration panel exceeded its jurisdiction where it rejected both a city’s and the union’s proposals on an economic issue, and the award made by the panel as to that issue may not be enforced by a circuit court (MCL 423.238; MSA 17.455[38]).
    4. Arbitration and Award — Policemen — Layoffs — Arbitration Panel’s Power.
    An arbitration award regarding layoffs of a city’s police officers was within the power of the arbitration panel to grant where the language of the award protects the police officers from retaliatory layoffs but does not restrict the basic legislative choices of the city in providing municipal services.
    5. Arbitration and Award — Policemen and Firemen — Constitutional Law — Statutes.
    The act providing for compulsory arbitration of disputes between a city and its policemen or firefighters does not unconstitutionally delegate political power to a nonpolitical body (Const 1963, art 3, § 2; art 4, § 1, MCL 423.231 et seq.; MSA 17.455[31] et seq.).

    6. Arbitration and Award — Policemen and Firemen — Arbitration Panel — Selection of Chairman — Statutes.
    The statutory scheme for selection of the chairman of an arbitration panel in a dispute between a city and its policemen or fire fighters does not operate to insure that the chairman will be pro-union and, therefore, does not deny a city due process on that basis (MCL 423.235; MSA 17.455[35]).

      Zwerdling & Maurer, for plaintiff.

      Roy W. Rogensues, for defendant.
    Before: N. J. Kaufman, P.J., and T. M. Burns and Bashara, JJ.
   Per Curiam.

The city appeals by right from a circuit court order enforcing a 1969 PA 312 panel arbitration award settling the contract for policemen represented by plaintiff for the year July 1, 1976, to June 30, 1977. The city makes a three-pronged attack on the circuit court’s enforcement of the award, challenging the procedure which led to enforcement, the authority of the panel to deal with the layoff issue and the constitutionality of the act. We affirm.

I

After the arbitration panel rendered a majority award, the union petitioned for enforcement in the Macomb County Circuit Court. MCL 423.240; MSA 17.455(40). The city answered the petition, challenging various portions of the award. The union then filed what it labeled a motion for summary judgment under GCR 1963, 117.2(3) (no issue of material fact). The city filed an answer to the motion alleging that questions of fact existed which precluded summary enforcement. The circuit court filed an opinion and order granting the petition to enforce without taking evidence.

We hold that the circuit court acted correctly. The policy of the act is to provide for expeditious resolution of disputes. MCL 423.231; MSA 17.455(31). To this end, the grounds upon which an award can be challenged are limited to those listed in the statute. MCL 423.242; MSA 17.455(42). To the grounds provided in the statute, the courts have reserved the right to review constitutional claims. Alpena v Alpena Fire Fighters Association, AFL-CIO, 56 Mich App 568; 224 NW2d 672 (1974), lv den 394 Mich 761 (1975).

The statute does not require a trial before enforcement will be granted. The time consumed in any extended procedure would be contrary to the stated purpose of the act. The circuit court’s review, and ours, is of the record made before the arbitration panel. It is not error to summarily order enforcement of the award after the party opposing enforcement has had an opportunity to raise the appropriate objections and a court has had an opportunity to review the record to determine if the questions decided were within the jurisdiction of the panel and the award is supported by competent, material and substantial evidence on the whole record.

Although we find no error in the procedure followed by the circuit court, we conclude that the court erred in ordering enforcement of the "educational incentive” provision of the award. Under MCL 423.238; MSA 17.455(38), the arbitration panel must accept the last offer of settlement by one of the parties on economic issues. The educational incentive clause of the contract was an economic issue, but the majority of the arbitration panel rejected both the city and union proposals as unsupported by the record. In doing so, the panel exceeded its jurisdiction under the act and this portion of the award should not have been enforced by the circuit court.

II

The city also challenges the layoff clauses as beyond the authority of the arbitration panel. The problem of layoffs was determined to be a noneconomic issue. A majority of the arbitration panel rejected both parties’ proposals and substituted a clause providing:

"The word 'layoff means a reduction in the working force due to a decrease of work or a general lack of funds. If for lack of funds, police officers may be laid off only in conjunction with layoffs and cutbacks in other departments.”

From the discussion at oral argument, it appears that the clause should be interpreted to allow all reductions in force for lack of work in the police department, and requires that reductions in force for economic reasons be in conjunction with reductions in other departments. The precise relationship between layoffs in the police department for economic reasons and layoffs in other departments is not settled by the clause nor was it intended to be. As explained by the majority of the arbitration panel, this compromise language was intended to protect the members of this bargaining unit from retaliatory layoffs because of what the city perceived to be a lack of cooperative attitude in fiscal matters, while at the same time expanding the city’s right to protect itself from a real fiscal crisis.

Viewed in the context of the previous relationship of these parties, the clause actually expands management rights. The prior layoff clause was interpreted to prohibit layoffs solely for economic reasons. Metropolitan Council No. 23, Local 1277, American Federation of State, County and Municipal Employees, AFL-CIO v Center Line, 78 Mich App 281, 286; 259 NW2d 460 (1977), lv den 402 Mich 814 (1977). The city, under the award language, may now lay off policemen for economic reasons but cannot do so in a manner which discriminates against the members of this bargaining unit. We do not perceive the language as restricting the basic legislative choices of the city in providing municipal services, and we conclude that the award was within the power of the arbitration panel. Fire Fighters Union, Local 1186, International Association of Fire Fighters, AFL-CIO v City of Vallejo, 12 Cal 3d 608; 116 Cal Rptr 507; 526 P2d 971 (1974), Board of Education of Yonkers City School District v Yonkers Federation of Teachers, 40 NY2d 268; 386 NYS2d 657; 353 NE2d 569 (1976). Cf. Alpena v Alpena Firefighters, supra, Town of Narragansett v International Association of Fire Fighters, AFL-CIO, Local 1589, RI —; 380 A2d 521 (1977).

Ill

The city also raises two constitutional challenges to the compulsory arbitration scheme. The city contends the act violates various provisions of the Michigan Constitution because it delegates political power to a nonpolitical body and that municipalities are denied due process because the selection scheme of MCL 423.235; MSA 17.455(35) insures the chairman of the arbitration panel will be pro-union.

The chairman of the arbitration panel in this case was chosen by the Michigan Employment Relations Commission supplying a list of three nominees and each party striking one name. MERC then appointed the individual whose name was not struck to serve as chairman.

This method of selection is different than that reviewed by the Supreme Court in Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn, 394 Mich 229; 231 NW2d 226 (1975), affirming by an equally divided court 42 Mich App 51; 201 NW2d 650 (1972), but not in a manner which would alter the result. A decision by an equally divided Supreme Court is not precedent which we are compelled to follow. LeVasseur v Allen Electric Co, 338 Mich 121; 61 NW2d 93 (1953). However, in this case we choose to follow the prior decision of this Court upholding the statute.

The city also claims that the procedural scheme for selecting the chairman denies it due process. In theory, the individual serving as chairman of these arbitration panels will have to be sufficiently unbiased to satisfy both labor and management or they will never secure future employment. However, the city contends that because only a few unions represent all public employees which are subject to the act, they have a built-in advantage over employers in determining the attitudes of prospective arbitration panel chairmen.

We cannot accept the city’s premise. There is nothing in the system which makes it inherently pro-union. There are organizations of cities and municipalities which could, and from comments at oral argument do, provide information on particular individual arbitrators to cities. There is no allegation of record that the chairman in this case was actually biased in favor of the union and if that were ever the case the matter could be raised under MCL 423,242; MSA 17.455(42) in opposition to a petition to enforce. The statutory scheme does not deny the city due process on the grounds alleged.

Affirmed as modified. No costs, a public question.

       MCL 423.231 et seq.; MSA 17.455(31) et seq.

       The dispute is not moot even though the fiscal year has expired. MCL 423.240; MSA 17.455(40).

       In this case we deal with "interest” arbitration. The parties have previously litigated certain grievance issues. Metropolitan Council No. 23, Local 1277, American Federation of State, County and Municipal Employees, AFL-CIO v Center Line, 78 Mich App 281; 259 NW2d 460 (1977), lv den 402 Mich 814 (1977).
      To the extent the city would have us review the grievance issues previously litigated we must decline the invitation under the law of the case doctrine. Topps-Toeller, Inc v Lansing, 47 Mich App 720, 727-729; 209 NW2d 843 (1973), lv den 390 Mich 788 (1973).

       "Orders of the arbitration panel shall be reviewable by the circuit court for the county in which the dispute arose or in which a majority of the affected employees reside, but only for reasons that the arbitration panel was without or exceeded its jurisdiction; the order is .unsupported by competent, material and substantial evidence on the whole record; or the order was procured by fraud, collusion or other similar and unlawful means. The pendency of such proceeding for review shall not automatically stay the order of the arbitration panel.” MCL 423.242; MSA 17.455(42).

       Const 1963, art 3, § 2; Const 1963, art 4, § 1.


text:
    PEOPLE v LANDIS
    Docket No. 78-5258.
    Submitted June 13, 1979, at Lansing.
    Decided July 11, 1979.
    Steven M. Landis was convicted, on his plea of guilty, of armed robbery, Hillsdale Circuit Court, Kenneth G. Prettie, J. The defendant appeals, claiming that the plea was not understandingly made. Held:

    There is no mandatory minimum sentence for armed robbery. The court at the plea proceeding did not need to advise the defendant of a mandatory minimum sentence for armed robbery.
    Affirmed.
    Robbery — Armed Robbery — Plea op Guilty — Minimum Sentence — Statutes.
    There is no mandatory minimum sentence for armed robbery; therefore, a court at a guilty plea proceeding need not advise a defendant of a mandatory minimum prison sentence for armed robbery (MCL 750.529; MSA 28.797).
    References for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 495, 496.
    67 Am Jur 2d, Robbery § 4.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ronald C. Zellar, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Leonard J. Malinowski, of counsel), for the people.

      Gail Rodwan, Assistant State Appellate Defender, for defendant on appeal.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.
   Per Curiam.

Defendant was plea convicted of the charged offense of armed robbery, contrary to MCL 750.529; MSA 28.797, and was sentenced to prison for a term of 7-1/2 to 20 years. He appeals of right and asserts he did not enter his guilty plea understandingly.

Defendant claims error in the trial judge’s informing him as follows:

"The armed robbery charge can carry with it, upon conviction, a maximum of life. There is no minimum sentence required under that statute. It is one which does not permit probation as á sentence.”

Defendant asserts that there is a mandatory minimum sentence—even though the Courts have not as yet determined what it is. The statute reads in pertinent part: "punishable by imprisonment for life or for any term of years”.

We choose to follow the opinion in the case of People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977), which .ruled that there is no mandatory minimum sentence for armed robbery, therefore, a court at a guilty plea proceeding need not advise a defendant of a mandatory minimum prison sentence for armed robbery.

Affirmed.


author: Per Curiam. Beasley, J.

text:
    DAVIES v GOODYEAR TIRE & RUBBER COMPANY
    Docket No. 29555.
    Submitted January 5, 1978, at Grand Rapids.
    Decided April 19, 1978.
    Archie Davies, a passenger in an automobile, was injured when a tire failed on a truck immediately ahead, the truck slowed to leave the roadway, and the car in which Davies was riding struck the rear of the truck. Davies brought an action for damages against Goodyear Tire & Rubber Company, the manufacturer of the tire. The Kent Circuit Court, George V. Boucher, J., entered a judgment on a jury verdict of no cause of action. Plaintiff appeals, alleging that the trial court should have instructed the jury to find that the tire was not reasonably fit for its anticipated use, because testimony that the tire’s failure resulted from a manufacturing defect was uncontradicted. Held:

    The plaintiff established a defect in the tire, required to be proved in a case based upon a breach of implied warranty, the theory upon which the case was submitted to the jury. Where the testimony regarding a fact is undisputed the jury should be instructed to find that fact in accordance with that testimony.
    Reversed and remanded.
    Beasley, J., dissented. He would hold that where the undisputed testimony was that of an expert witness who expressed an opinion, as occurred in this case, it constitutes an exception to the general rule that where the testimony regarding a fact is not disputed the jury should be instructed to find that fact in accordance with the testimony. He would affirm.
    References for Points in Headnotes

       63 Am Jur 2d, Products Liability §§ 3, 98, 114.

       63 Am Jur 2d, Products Liability §§ 15, 63.

       75 Am Jur 2d, Trial § 493.
    76 Am Jur 2d, Trial § 1202.

       30 Am Jur 2d, Evidence §§ 1080, 1083.
    81 Am Jur 2d, Witnesses §§ 656, 657.
    Credibility of witness giving uncontradicted testimony as matter for court or jury. 62 ALR2d 1191.

       31 Am Jur 2d, Expert and Opinion Evidence § 183.

      Opinion of the Court
    1. Products Liability — Breach of Implied Warranty — Proof — Defect — Injury.
    A plaintiff in a products liability case based on a theory of breach of implied warranty must prove a defect in manufacture and injury or damage caused by or resulting from that defect in order to prevail against the manufacturer.
    2. Products Liability — Breach of Implied Warranty — Proof — Defect — Failure of Product.
    A plaintiff has established the defect required to be proven in a products liability case based on breach of an implied warranty where he has proved that a particular defect in a product caused the product’s failure while it was being used for its anticipated or reasonably foreseeable purpose or use.
    3. Trial — Instructions to Jury — Findings of Fact — Undisputed Testimony.
    A jury should be instructed to find a fact in accordance with the testimony where the testimony regarding that fact is undisputed.
    Dissent by Beasley, J.
    4. Witnesses —• Assertions of Witnesses — Belief in Testimony.

      A mere assertion by a witness does not, in itself, need to be believed, even though the witness is not impeached in any manner.

      5. Witnesses —■ Expert Witnesses — Opinion Testimony — Undisputed Testimony.

      The opinion of an expert witness, even though uncontradicted, is not conclusive or binding; the weight of such testimony is best left to the jury in its determination of an issue of fact.

      Reamon, Williams, Klukowski & Craft, P.C., for plaintiff.

      Wheeler, Upham, Bryant & Uhl, for defendant.
    Before: D. F. Walsh, P.J., and R. M. Maher and Beasley, JJ.
   Per Curiam.

Plaintiff brought a products liability action to recover for injuries sustained as the result of the failure of a tire manufactured by the defendant. The case was submitted to the jury on a theory of implied warranty. Plaintiff appeals from a verdict of no cause of action.

The only issue on appeal is whether uncontradicted testimony that the tire’s failure resulted from a manufacturing defect entitled the plaintiff to a jury instruction directing a finding that the tire was not reasonably fit for its anticipated use.

Defendant is a manufacturer of tires, one of which was sold to Great Lakes Express and installed. on the right front wheel of a cab tractor. As the tractor was hauling a trailer on 1-94, the tire’s tread splice delaminated causing a portion of the tread to fall off the tire. When the truck slowed to pull off the roadway, it was struck from behind by an automobile in which plaintiff was a passenger. Plaintiff was seriously injured and filed this action seeking damages.

At trial, plaintiff presented expert testimony that the tire’s failure was the result of a manufacturing defect—an open tread splice. In addition to describing the defect in detail, the expert witness also testified that his examination of the tire yielded no evidence of improper mounting or other condition that might have contributed to the tire failure. The opinions and conclusions of plaintiff’s expert were corroborated by the report of an independent expert and of an expert in the defendant’s employ.

The defendant rested without offering any proofs rebutting the above testimony and did not attempt to impeach either the testimony or the qualifications of plaintiff’s expert, whereupon the plaintiff moved the trial court to instruct the jury that as a matter of law the evidence had established a manufacturing defect. The court denied the motion, ruling that in a products liability action based upon an implied warranty (the only theory submitted to the jury) the existence of a manufacturing defect was "irrelevant and immaterial”.

We hold that the plaintiff was entitled to the requested instruction.

To prevail against a manufacturer in a products liability case on a theory of implied warranty, a plaintiff must prove (a) the defect in manufacture upon which he relies, and (b) injury or damage caused by or resulting from such defect. Kupkowski v Avis Ford, Inc, 395 Mich 155; 235 NW2d 324 (1975), Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975), Piercefield v Remington Arms Co, Inc, 375 Mich 85; 133 NW2d 129 (1965). The import of the foregoing cases is that the gravamen of an implied warranty action is an injury caused by a manufacturing defect in a product.

It may be that not all manufacturing defects render a product unfit for its anticipated use. Hence, undisputed proof that a product was in some way defective would not always prove that the product was not reasonably fit for the use for which it was intended. However, when the plaintiff proves that a particular defect caused the product’s failure while it was being used for its anticipated or reasonably foreseeable purpose or use, he has established the "defect” required to be proven in an implied warranty action. See Mosier v American Motors Corp, 303 F Supp 44 (SD Tex, 1967), aff'd 414 F2d 34 (CA 5, 1969).

In the instant case, all the pertinent evidence attributed the tire’s failure to a defect in manufacture. Where the testimony regarding a fact is undisputed the jury should be instructed to find that fact in accordance with that testimony. Douglas v Edgewater Park Co, 369 Mich 320; 119 NW2d 567 (1963), Dondero v Frumveller, 61 Mich 440; 28 NW 712 (1886), Bensinger v Happyland Shows, Inc, 44 Mich App 696; 205 NW2d 919 (1973). Accordingly, we hold that the trial court erred in denying plaintiffs motion. The proofs established the existence of a manufacturing defect. The jury should have been so instructed.

Because the jury returned a general verdict for the defendant, we can only speculate as to the reasons for their decision. Therefore, we reverse. Smith v Jones, 382 Mich 176; 169 NW2d 308 (1969), Rouse v Gross, 357 Mich 475; 98 NW2d 562 (1959). Insofar as the existence of a manufacturing defect has been established as a matter of law, we remand for a new trial to determine the remaining factors relating to defendant’s liability. See Bensinger v Happyland Shows, Inc, supra.

Costs to appellant.

Beasley, J.

(dissenting). I respectfully dissent.

Plaintiff moved for a directed verdict against defendant on the existence of the alleged defect in the tire, claiming that all of the evidence supported such a finding of fact and that there was not any contrary evidence. Counsel for plaintiff said:

"* * * [T]he proper course of action is direction to advise the jury that the question is no longer subject to their determination, that this defect has been established as a matter of law and that they can proceed to the question of proximate cause.”

Plaintiffs counsel further said:

"Perhaps, Your Honor, I was guilty of coarse language when I said directed verdict. What I should have said was a mandatory finding of fact.”

Still further on in the argument with respect to his motion, counsel for plaintiff said:

"What I want in effect, Your Honor, is that (a) be determined to have been established as a matter of law * * * >>

The (a) that counsel referred to is Standard Jury Instruction 25.23(a) which the court indicated in the context of this case would be:

"(a) that the Goodyear truck tire was not reasonably fit for the use or purpose anticipated or reasonably foreseeable by the Defendant in one or more of the ways claimed by the Plaintiff; * * *.”

What plaintiff appears to be saying is that the court must tell the jury that, as a matter of law, it has been established that a defect existed in the tire at the time it left defendant’s factory.

In this case, plaintiff offered expert testimony that a large piece of tread had come loose from the right front tire of the tractor-trailer while it was rotating. This caused the tractor-trailer to slow suddenly and to veer to the right. Traveling 70 miles per hour in his police vehicle, plaintiff’s driver was unable to stop and struck the left rear corner of the tractor-trailer.

The experts testified the tread came loose as a result of a manufacturing defect described as an open tread splice. This expert testimony came in response to hypothetical questions and was properly admissible into evidence in support of plaintiffs theory. There was no testimony contradicting the experts.

Under the Michigan Standard Jury Instructions, adopted pursuant to GCR 1963, 516.6, the trial court was obliged to give the pertinent instructions set forth in Standard Jury Instructions 25.11, 25.13, 25.21 and 25.23.

In this case, the trial judge followed the Standard Jury Instructions, instructing in part as follows:

"When I use the words 'proximate cause,’ I mean, first, that there must have been a connection between the failure of the product to meet thé warranty and the injury complained of by the plaintiff, and, second, that the occurrence which is claimed to have produced that injury was a natural and probable result of such failure to meet the warranty. There may be more than one proximate cause. A cause may be proximate although it and another cause act at the same time or in combination to produce the occurrence. To be a proximate cause, the claimed failure of the product to meet the warranty need not be the only cause, nor the last cause. If you decide that the product failed to meet the warranty and that such failure was a proximate cause of the occurrence, it is not a defense that the conduct of someone other than the defendant may also have been a cause of this occurrence. However, if you decide that the only proximate cause of the occurrence was the conduct of someone other than the defendant or its employees, then your verdict should be for the defendant.
"On the questions of whether or not the accident was a natural and probable result of such a failure to meet the warranty and whether or not the conduct of someone other than the defendant or its employees was the only proximate cause of the accident, you may consider the conduct of the driver of the Michigan State Police cruiser, in which plaintiff was a passenger, which would constitute a violation of any of the following duties:
"When I use the words 'implied warranty,’ I mean a duty imposed by law which requires that the manufacturer’s product be reasonably fit for the purpose and use intended or reasonably foreseeable by the manufacturer.
"First, that the Goodyear truck tire was not reasonably fit for the use or purpose anticipated or reasonably foreseeable by the defendant in one or more of the ways claimed by the defendant;
"And, second, that the truck tire was not reasonably fit for the use or purpose anticipated or reasonably foreseeable by the defendant at the time it left the defendant’s control;
"And, third, that the plaintiff was injured;
"And, fourth, that the defective tread splice in that tire was a proximate cause of the injuries to the plaintiff.
"Your verdict will be for the plaintiff if he was injured and the product, when it left the defendant’s control, was not reasonably fit for the use or purpose anticipated or reasonably foreseeable by the defendant, and this was a proximate cause of his injuries.
"Your verdict will be for the defendant if plaintiff was not injured, or if the product was reasonably fit for the use and purpose anticipated or reasonably foreseeable by the defendant at the time the tire left defendant’s control, or if the defective tread splice in that tire was not a proximate cause of the injuries.”

The general rule of law is that mere assertion by a witness does not, of itself, need to be believed, even though he is not impeached in any manner.

In People v Burbank, 234 Mich 600, 606; 208 NW 687 (1926), the Michigan Court stated:

"It surely cannot be the law that the testimony of a witness as to a fact which, if established, fully rebuts the presumption on which the prima facie case rests, must in all cases be accepted as true, no matter how improbable or unworthy of belief it may seem to be. While the jury may not weigh the presumption against the proof offered to rebut it, it is for them to determine whether such proof, although uncontradicted, establishes the fact relied on to rebut the presumption.” (Emphasis added.)

The majority state that this case is controlled by the rule that where the testimony regarding a fact is undisputed, the jury should be instructed to find that fact in accordance with that testimony. However, where an expert expresses an opinion, it constitutes an exception to the general rule stated by the majority. For example, in Vial v Vial, 369 Mich 534, 537; 120 NW2d 249 (1963), the Court said:

"Indeed, no trier or triers of fact are bound to accept opinion testimony, however expert and authoritative, as they proceed to determine issues of fact duly committed to them for finding or verdict.”

The three cases cited by the majority do not involve expert testimony in the nature of expressing an opinion. For example, in Douglas v Edgewater Park Co, 369 Mich 320; 119 NW2d 567 (1963), the case involved a claim of violation of a fire regulation promulgated under a state statute. Among other things, the fire regulation required safety instruction for employees under certain circumstances. In that case, the Court found that violation of the regulation was evidence of negligence and that the trial court should have instructed that the regulation had been violated.

In Bensinger v Happyland Shows, Inc, 44 Mich App 696; 205 NW2d 919 (1973), this Court found that there were undisputed facts that defendant violated a section of the motor vehicle code by stopping his vehicle upon a highway and permitting it to stand there at a time when he was not loading or unloading. Neither of these cases come within the exception afforded the situation where the testimony constitutes an expression of opinion by an expert.

I would believe that the wiser rule and the better authority leaves this type of fact question to determination by the jury without comment by the court on the weight of the expert testimony. Therefore, I respectfully dissent.

I would affirm.

       The trial court was convinced that the evidence did establish that a defect existed and indicated its willingness to so instruct the jury in the context of an express warranty theory.

       This statement harmonizes the language of the Supreme Court cases defining this cause of action with that of the pertinent standard jury instructions. SJI 25.23(a), (b).

       See Holbert v Staniak, 359 Mich 283; 102 NW2d 186 (1960), Druse v Wheeler, 26 Mich 189 (1872). Defendant would have us exclude expert testimony from this rule. However, neither the above cases nor those cited by the defendant support such a distinction.

       Because this record contains no reference whatever to a special verdict as authorized under GCR 1963, 514 in the trial judge’s discretion, only a general verdict was ever contemplated here.

       7 Wigmore, Evidence (Chadbourn Rev), § 2034, p 344. The text writers in 32 CJS, Evidence, § 569(l)(b), pp 602-606, state the rule as follows:
      "The testimony of an expert witness is not to be accepted as truth per se, and is not proof of a fact. Opinions of experts are generally not conclusive, binding, or controlling; and this is the rule even when such opinions are uncontroverted, or uncontradicted, or not disputed, or unambiguous, or unanimous. The Opinions are merely, or purely, advisory, or, as the courts have alternatively declared, merely evidentiary, and all or part of an expert’s opinion may generally be accepted or rejected as it appeals to the judgment and conscience of the trier of the facts.”

       See, Yonkus v McKay, 186 Mich 203, 211; 152 NW 1031 (1915):

        "The administration of justice does not require the establishment of a rule which compels the jury to accept as absolute verity every uncontradicted statement a witness may make.”
      Commentary on effect of expert testimony: 11 MLP, § 268, p 498. Expert testimony, if uncontradicted, is conclusive as to some facts, but not all. See also Eaves v City of Ottumwa, 240 Iowa 956; 38 NW2d 761; 11 ALR2d 1164 (1949), Anno: Propriety and effect of instructions in civil case on the weight or reliability of medical expert testimony, 86 ALR2d 1038, 1044.


text:
    LAKE CARRIERS’ ASSOCIATION v MacMULLAN
    Docket No. 78-1648.
    Submitted February 15, 1979, at Lansing.
    Decided June 25, 1979.
    The Lake Carriers’ Association and others brought an action seeking a declaratory judgment and an injunction against enforcement of the Michigan Watercraft Pollution Control Act of 1970. Defendants were Ralph A. MacMullan, Director of the Department of Natural Resources, Ralph W. Purdy, Executive Secretary of the Water Resources Commission, the Department of Natural Resources, the Water Resources Commission, and Frank J. Kelley, Attorney General. The Dominion Marine Association was allowed to intervene as a plaintiff. The Mackinac Circuit Court, Martin B. Breighner, J., determined that the provisions of the Watercraft Pollution Control Act regulating the treatment and discharge of sewage on vessels on the Great Lakes were ambiguous, and construed the act as prohibiting only the discharge of sewage which is not treated in accordance with applicable Federal standards. A judgment was entered enjoining the defendants from enforcing the pertinent provisions of the act. The Attorney General appeals. Held:

    The Watercraft Pollution Control Act is ambiguous and is therefore subject to judicial interpretation. The act is to be considered in pari materia with other statutes and with Federal law and treaties. When so considered, the act is construed to ban only the discharge of sewage which is not treated in accordance with Federal standards.
    Affirmed.
    1. Statutes — Construction of Statutes — Ambiguous Statutes.
    Construction or interpretation of a statute is not warranted if the statute in question is unambiguous on its face; however, where an ambiguity is found it is the duty of the court to consider the intent of the Legislature.
    References for Points in Headnotes

       73 Am Jur 2d, Statutes §§ 145, 146, 194, 195.

       73 Am Jur 2d, Statutes §§ 275, 276.

       61 Am Jur 2d, Pollution Control §§ 53, 78.

      2. Statutes —• Construction of Statutes — Ambiguous Statutes.
    A court, in construing a vague or ambiguous statute, must give the statute a reasonable construction which will best effect its purpose, interpreting the statute as a whole, giving meaning to all of its provisions, and producing a harmonious and consistent result in construing a statute capable of more than one meaning, the court must also look to other statutes in pari materia in order to determine the evil sought to be remedied by the Legislature.
    3. Waters and Watercourses — Environmental Law — Great Lakes Vessels — Sewage Treatment — Statutes.
    Federal standards for waste treatment aboard Great Lakes vessels place those vessels on a parity with municipalities with respect to waste treatment, thus accomplishing the objectives sought by the Michigan Legislature in the Watercraft Pollution Control Act of 1970 (33 USC 1322[c][l][B], 33 CFR § 159[1978], MCL 323.333, 323.334; MSA 3.533[203], 3.533[204]).
    4. Waters and Watercourses — Environmental Law — Great Lakes Vessels — Sewage Treatment — Statutes.
    The provisions of the Watercraft Pollution Control Act of 1970 dealing with sewage treatment and discharge by Great Lakes vessels do not absolutely prohibit all sewage discharge; only the discharge of sewage not treated according to Federal standards is prohibited by the act (MCL 323.333, 323.334; MSA 3.533[203], 3.533[204]).

      Brown & Brown, and Scott H. Elder, General Counsel, Lake Carriers’ Association, for the Lake Carriers’ Association.

      Scholl, Theut, Robinson, Stieg & Schellig, for the Dominion Marine Association.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jerome Maslowski, Russell E. Prins and Thomas L. Casey, Assistants Attorney General, for the Attorney General.
    Before: M. J. Kelley, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   Per Curiam.

This is an appeal, brought by defendant Attorney General, from a decision of the Circuit Court for the County of Mackinac construing certain sections of the Michigan Watercraft Pollution Control Act of 1970; MCL 323.331, et seq.; MSA 3.533(201), et seq., (hereinafter referred to as WPCA), and granting plaintiffs injunctive relief against enforcement of a provision of the act which would prohibit the discharge of all sewage, whether treated or untreated, from cargo-carrying vessels engaged in commerce on Michigan waters.

In 1971, plaintiff Lake Carriers’ Association instituted an action against Michigan officials in the United States District Court for the Eastern District of Michigan seeking declaratory and injunctive relief against enforcement of the WPCA, which was interpreted by the defendants as entirely prohibiting the discharge of sewage, whether treated or untreated, in state waters and as requiring vessels equipped with toilet facilities to carry sewage storage devices permitting subsequent onshore disposal of sewage. Plaintiffs attacked the validity of the Michigan act on Federal constitutional grounds, including vagueness, interference with interstate and foreign commerce and with uniform maritime law, denial of due process and equal protection as well as violation of the supremacy clause by being in conflict with Federal water pollution control statutes, which allegedly contemplated pollution control through on-board treatment of sewage before discharge.

A three-judge panel of the district court dismissed the complaint for lack of a justiciable controversy and also found compelling reasons to abstain from consideration of the merits. Lake Carriers’ Ass’n v MacMullan, 336 F Supp 248 (ED Mich, 1971). An appeal was taken to the United States Supreme Court and an amicus curiae brief was filed on behalf of Dominion Marine Association raising the additional arguments that the Michigan law conflicts with the United States-Canadian Boundary Waters Treaty of 1909, 36 Stat 2448; TS No. 548, and that the law enters the domain of foreign affairs, an area constitutionally reserved to the national government.

The United States Supreme Court held that the case did present an "actual controversy” within the meaning of the Declaratory Judgment Act, 28 USC 2201. However, the high Court went on to hold that abstention was appropriate because the WPCA had not been construed in any Michigan court and it appeared that the ambiguous language in the statute might be construed by the Michigan courts in such a way as to avoid or significantly modify the Federal questions raised. The Supreme Court, therefore, vacated the lower court judgment and remanded to the district court with direction to retain jurisdiction pending institution of appropriate proceedings in Michigan courts. Lake Carriers’ Ass’n v MacMullan, 406 US 498; 92 S Ct 1749; 32 L Ed 2d 257 (1972). An order to that effect was entered in the district court, Lake Carriers’ Ass’n v MacMullan, Civil Action No. 36194 (June 20, 1972).

State court proceedings were initiated when a complaint was filed in the Circuit Court for the County of Mackinac seeking declaratory relief, pursuant to GCR 1963, 521, definitively determining the allegedly ambiguous portions of the WPCA. In reviewing the WPCA, the circuit court first considered the relation of the Michigan statute to the Federal Water Pollution Control Act, 33 USC 1251 et seq., the Boundary Waters Treaty and the United States-Canadian Great Lakes Water Quality Agreement of April 15, 1972, 23 UST 301; TIAS No. 7312. Reconciling the statute to the other provisions, the court found that the Michigan act is neither clear nor unambiguous and decided, therefore, that it was necessary to construe the statute in order to ascertain if it did proscribe the discharge of all sewage. As an aid in determining the intent of the Legislature and the meaning of the statute, the court also looked to the entire water resources commission act, MCL 323.1 et seq.; MSA 3.521 et seq. (hereinafter referred to as WRCA). It found that the overall objective of the WRCA was to prohibit the pollution of Michigan waters. It further found that the watercraft pollution section of the WRCA does not ban the discharge of all sewage, but seeks only to prohibit the deposit in Michigan waters of any sewage or liquid or solid materials which "render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes”. MCL 323.333(1); MSA 3.533(203X1). The circuit court then held that the WPCA did not bar the discharge of all sewage, but that the discharge of sewage treated to an adequate degree by a United States or Canadian Federally certified marine sanitation device was permissible.

In this appeal, the defendant Attorney General challenges only the trial court’s construction of the statute vis-á-vis the various rules of statutory interpretation. Because the lower court did not reach the constitutional issues involved in light of its finding that the statute did allow the discharge of adequately treated sewage, those issues will be reached only if this Court takes a view contrary, to that of the circuit court as to the statute’s construction. Thus, at the outset, we are presented with a single and controlling question of law.

Does the Watercraft Pollution Control Act prohibit the discharge of sewage, whether treated or untreated, from cargo-carrying vessels engaged in commerce on the waters of the State of Michigan?

The defendant-appellants contend that the circuit court erred in finding the WPCA ambiguous and therefore susceptible to judicial interpretation. Alternatively, if the act is deemed to be ambiguous, it is argued that the circuit court improperly relied on the permit system established by the Water Resources Commission Act, which allows the discharge of treated sewage by municipalities and shore-based facilities, as indicating a legislative tolerance of the discharge of treated sewage because the latter act did not require such permits at the time the WPCA was enacted.

Plaintiffs-appellees answer that the United States Supreme Court has found the language of the WPCA to be ambiguous, and abstained from addressing the merits of this dispute in order to permit Michigan courts the opportunity to render a clarifying interpretation. Furthermore, it is argued that the circuit court’s construction of the WPCA, which reconciled state and Federal statutes, as well as treaties, is merely an application of § 11 of the act which provides that "the provision or the rule [presumably promulgated thereunder] shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations”. MCL 323.341; MSA 3.533(211). In any event, plaintiff contends the WPCA is only concerned with "detrimental” sewage rather than "benign” sewage (sewage treated in accordance with Federal standards by Federally approved and certified treatment devices); as the discharge of treated sewage meeting Federal standards is permitted by municipalities and shore-based industries, to read the WPCA so as to proscribe such discharge from vessels raises serious constitutional questions.

In resolving these opposing contentions and reviewing the construction of the circuit court, our attention is directed to the question of whether or not the language of the WPCA is unclear and ambiguous for, if a statute is unambiguous on its face, there is no room for statutory construction or interpretation. Detroit v Redford Twp, 253 Mich 453, 455; 235 NW 217 (1931), Luyk v Hertel, 242 Mich 445, 448; 219 NW 721 (1928). On the other hand, if ambiguity is found, then it is the duty of the court to consider the intent of the Legislature. As stated in Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956):

"The cardinal rule of statutory construction is to ascertain and give effect to the intention of the legislature. If the language of a statutory provision is unambiguous, the intent must be determined accordingly. It is requisite that pertinent provisions of the act be considered together, to the end that the general plan and purpose of the law-making body may be ascertained. All parts of the specific provision to be construed must be given force and effect. This means that no phrase, or clause, or word, may be ignored in determining the construction of such provision.”

Turning to the statute in question, § 4 of the WPCA, MCL 323.334; MSA 3.533(204), prescribes the conditions under which a marine toilet may be used on state waters, that is, requiring the use of sewage storage containers. The provision states in relevant part:

"(2) A person [defined in § 2(i) to include an individual, or corporation, association or other entity] owning, operating or otherwise concerned in the operation, navigation or management of a watercraft [defined in § 2(g) to include foreign and domestic vessels engaged in commerce] having a marine toilet shall not own, use or permit the use of such toilet on the waters of this state unless the toilet is equipped with 1 of the following pollution control devices:
"(a) A holding tank or self-contained marine toilet which will retain all sewage [defined in § 2(d) as meaning 'all human body wastes, treated or untreated’] produced on the watercraft for subsequent disposal at the approved dockside or onshore collection and treatment facilities.
"(b) An incinerating device which will reduce to ash all sewage produced on the watercraft. The ash shall be disposed of onshore in a manner which will preclude pollution.”

If the foregoing language were considered in isolation, then defendant’s contention, that the act absolutely prohibits the discharge of any sewage into Michigan waters, would be unassailable. When § 3 of the act is considered, however, conflict and resulting ambiguity emerge. Section 3 of the act states:

"Sec. 3. (1) A person shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any * * * sewage * * * or other liquid or solid materials which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes.
"(2) It is unlawful to discharge, dump, throw or deposit * * * sewage * * * from a recreational, domestic or foreign watercraft used for pleasure or for the purpose of carrying passengers, cargo or otherwise engaged in commerce on the waters of this state.” MCL 323.333; MSA 3.533(203).

In reaching the conclusion that the act was unclear and ambiguous, the circuit court viewed the language of the United States Supreme Court opinion as a directive on the subject. The high Court’s opinion states in pertinent part:

"The Michigan Watercraft Pollution Control Act of 1970 has not been construed in any Michigan court, and, as appellants themselves suggest in attacking it for vagueness, its terms are far from clear in particulars that go to the foundation of their grievance. It is indeed only an assertion by appellees that the Michigan law proscribes the discharge of even treated sewage in state waters. Section 3(2) of the Act does state that '[i]t is unlawful to discharge * * * sewage * * * from a recreational, domestic or foreign watercraft used for pleasure or for [commerce] * * *,’ and § 4(2) does require vessels equipped with toilet facilities to have sewage storage devices. Yet § 3(1) seemingly contemplates the discharge of treated sewage by merely prohibiting any person from emitting sewage 'which [renders] the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes.’ Moreover, § 11 provides that '[t]o be enforceable, the provision [of the Act] or the rule [presumably promulgated thereunder] shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations.’ Michigan has thus demonstrated concern that its pollution control requirements be sufficiently flexible to accord with federal law. We do not know, of course, how far Michigan courts will go in interpreting the requirements of the state Watercraft Pollution Control Act in light of the federal Water Quality Improvement Act and the constraints of the United States Constitution.” (Footnotes omitted). Lake Carriers’ Ass’n v MacMullan, 406 US 498, 511-512; 92 S Ct 1749; 32 L Ed 2d 257 (1972).

We, like the circuit court, think that the Supreme Court has identified the central inconsistency of the act. Furthermore, we agree with the high Court’s conclusion that the language of § 3(1), which merely prohibits the discharge of sewage "which render[s] the water unsightly, noxious”, etc., is in direct conflict with the absolute prohibitions embodied in § 3(2) and § 4(2) barring the discharge of all sewage. As to the question before us, i.e., whether or not the statute bars the discharge of all or merely inadequately treated sewage, it is apparent that the WPCA provides no clear answer. As the vagueness of the act’s language presents a classic instance warranting judicial construction and interpretation, we hold that the circuit court was correct in finding the act neither clear nor unambiguous.

In construing and interpreting the language of the WPCA, we are guided by familiar principles of statutory construction. First, the court must look to the object to be accomplished, the evils and mischief sought to be remedied and place on the statute a reasonable construction which will best effect its purpose rather than defeat it. Stover v Retirement Board of St. Clair Shores, 78 Mich App 409, 412; 260 NW2d 112 (1977), Municipal Investors Ass’n v Birmingham, 298 Mich 314, 322; 299 NW 90 (1941), aff'd, 316 US 153; 62 S Ct 975; 86 L Ed 1341 (1942), 82 CJS, Statutes, § 323, pp 593-613. In addition, vague and ambiguous statutes must be interpreted as a whole and constructed so that all of their provisions have some meaning, the entire statute given effect, and a harmonious and consistent result produced. In re Petition of State Highway Comm, 383 Mich 709, 714; 178 NW2d 923 (1970), People v Miller, 78 Mich App 336, 343; 259 NW2d 877 (1977), 21 MLP, Statutes, § 95, pp 99-104. Finally, in construing this particular statute, i.e., one capable of more than one meaning, we believe that we must look to other statutes in pari materia in order to determine the evil sought to be remedied by the Legislature. Borden, Inc v Dep’t of Treasury, 391 Mich 495, 523; 218 NW2d 667 (1974), People v Martin, 59 Mich App 471, 481; 229 NW2d 809 (1975). 82 CJS, Statutes, § 365, pp 799-801.

In obtaining a harmonious and consistent result in our construction of the WPCA, we are mindful that our interpretation must take into account the fact that Federal statutes and national treaties stand in pari materia to the act at issue. Indeed, we think plaintiffs are correct when they argue that § 11 of the act, cited above, indicates a legislative recognition of the interplay of state and Federal pollution control in international waters. Consequently, we briefly summarize the most salient points of Federal statute and treaty law touching this question.

The Federal Water Pollution Control Act, 33 USC 1251 et seq., as amended by the Clean Water Act of 1977, Pub. L. No., 95-217, 91 Stat 1566, updates Federal pollution standards for Great Lakes vessels. Specifically, the amendment requires the administrator of the Environmental Protection Agency to establish waste treatment standards for Great Lakes vessels which are, at a minimum, the equivalent of secondary treatment standards for municipalities. 33 USC 1322(c)(1)(B). Furthermore, the rules promulgated pursuant to that statute establish an outside time limit of January 30, 1980, for the installation of marine sanitation devices for treating sewage prior to discharge. 33 CFR § 159 (1978). Thus, we are inclined to agree with the circuit court that the Federal law now places vessels and municipalities on a parity with respect to waste treatment, and thus accomplishes the objectives which the Michigan Legislature sought to achieve through the use of sewage holding tanks and subsequent on-shore treatment. Further, the Boundary Waters Treaty of 1909, as implemented by the Great Lakes Water Quality Agreement of 1972, constitutes additional legal authority indicating a Federal commitment to on-board sewage treatment. Annex 4 of the Agreement states in relevant part:

"Every vessel operating in these waters with an installed toilet facility shall be equipped with a device or devices to contain the vessel’s sewage, or to incinerate it, or to treat it to an adequate degree. ” (Emphasis supplied).

In addition to Federal statute and treaty, our review of related enactments also requires that we, like the circuit court, view the WPCA in the context of the entire Water Resources Commission Act. The circuit court based its conclusion, in part, on the fact that municipalities and shore-based industries are allowed to discharge waste into the Great Lakes pursuant to permits requiring such waste to receive secondary treatment in accordance with Federal standards. We endorse this conclusion and the language of the circuit court opinion which states:

"This Court concludes that the Michigan legislature considers secondary treatment, in accordance with federal standards, as adequate sewage disposal and that such discharges do not render the waters unsightly, noxious or unwholesome. * * * While § 2(d) of the Act defines 'sewage’ as 'all human body wastes, treated or untreated’, in order to reconcile this section with § 3(1), which only prohibits emission of sewage which renders the water 'unsightly, noxious or otherwise unwholesome so as to be detrimental (etc)’, the term 'treated’ in § 2(d) cannot be deemed to include wastes receiving treatment to a degree whereby the waters of the state are not so impaired. * * *
"The Act should not be read to proscribe the discharge of adequately treated sewage into Michigan waters. The discharge of treated sewage meeting federal standards is permitted by municipalities and industries, and to read the Act to proscribe such discharge from vessels raises serious constitutional questions avoided by an interpretation of the Act permitting the discharge of treated sewage from vessels which conforms to federal standards and which, therefore, does not render the state’s waters unsightly, noxious or otherwise unwholesome * * * ’ [sic] The objective of the Act is thus achieved and constitutional questions avoided, which could render the Act unenforceable, 82 C.J.S., Statutes, Sec. 316 (p. 545); Insurance Commissioner v American Life Insurance Company, 290 Mich 39, 44-45; 287 NW 368 (1939).”

We think it apparent that the Federal statute and the Michigan act have a common objective, that is, the prevention and control of water pollution. It is equally apparent from a review of the statutes that Federal law envisions pollution control through on-board sewage treatment before disposal in navigable waters. The WPCA, as presently stated, embodies an ambiguous and inconsistent approach to the problem of pollution control: first, proscribing all discharge in § 3(2) and § 4(2); and second, qualifying this general proscription in § 3(1) to only that sewage which "render[s] the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes”. In order to achieve a harmonious and consistent result with statutes and treaty law in pari materia, we are compelled to reject that interpretation of the WPCA which would absolutely prohibit all sewage discharge and conclude that the correct construction to be placed upon the act is one which bans only the discharge of inadequately treated sewage, i.e., that not treated in accordance with Federal standards.

We therefore affirm the holding of the trial court finding the WPCA to be ambiguous and construing it to bar only the discharge of treated sewage not meeting Federal standards.

Affirmed.

       Plaintiffs are the Lake Carriers’ Association and' certain of its individual member companies who own and/or operate Federally enrolled and licensed Great Lakes bulk cargo vessels. Intervenor plaintiff, Dominion Marine Association,' is an organization incorporated under the laws of the Dominion of Canada whose members own and/or operate Canadian registered commercial vessels in the Great Lakes.

       Defendants are the State Attorney General, The Department of Natural Resources and its Director, and the Water Resources Commission and its Executive Secretary.