author: W. Van Valkenburg, J.

text:
    DETTORE v BRIGHTON TOWNSHIP
    Docket No. 78-729.
    Submitted May 1, 1979, at Lansing.
    Decided August 6, 1979.
    Leave to appeal applied for.
    Louis J. Dettore, now deceased, was the president of U.S. Building and Development Company, and the owner of a 70-acre parcel of land in Brighton Township. For several years Dettore operated a sand and gravel mine on this parcel, with the permission of the township. This use is a pre-existing nonconforming use in an area now zoned R-l residential. In 1973, Dettore obtained a license from the Department of Natural Resources to operate a sanitary landfill on 20 acres of the parcel. The Brighton Township Board of Appeals, however, refused to grant a zoning variance necessary to expand the nonconforming use.
    Dettore and U.S. Building and Development Company brought an action against Brighton Township, the Township Board of Appeals and the individual board members in the Livingston Circuit Court for mandamus to compel the board to issue the variance sought by the plaintiffs. The circuit court judge denied the petition, ruling that the board had discretionary power to prohibit the plaintiffs from exercising the permission granted by the DNR. The plaintiffs appealed. The Court of Appeals, without reaching the merits of any other issues raised by the plaintiffs in circuit court, affirmed the denial of mandamus. 58 Mich App 652 (1975).
    The matter continued in circuit court on the issues not previously disposed of and the circuit court subsequently ordered the matter remanded to the board for a full hearing to determine whether the proposed use of the land as a sanitary landfill was reasonable under the circumstances and whether the township’s zoning ordinance was unreasonable or confiscatory as applied to the property in question.

      References for Points in Headnotes

       82 Am Jur 2d, Zoning and Planning § 27.

       82 Am Jur 2d, Zoning and Planning § 25.

       82 Am Jur 2d, Zoning and Planning § 36.

       5 Am Jur 2d, Appeal and Error § 839.

       30 Am Jur 2d, Evidence § 1095.

       82 Am Jur 2d, Zoning and Planning § 150.

       81 Am Jur 2d, Witnesses §§ 413, 414.
    12 Am Jur 2d, Zoning and Planning § 306.

       75 Am Jur 2d, Trial § 173.

       82 Am Jur 2d, Zoning and Planning § 35.

       82 Am Jur 2d, Zoning and Planning § 61.

      After a hearing, the board determined that the proposed use was unreasonable. The 11 reasons cited by the board in support of its conclusion were exactly the same as those it relied upon to deny the original request for a zoning variance. The board also determined that the township’s zoning ordinance was reasonable and not confiscatory because the plaintiffs could continue to excavate sand and gravel from the land at a profit or, alternatively, could discontinue the mining operation and use the land for a residential development.
    The plaintiffs appealed this decision to the Livingston Circuit Court, which affirmed the board’s decision, William F. Ager, Jr., J. The plaintiffs appeal, raising numerous issues. Plaintiff Dettore is now represented by the fiduciaries of his estate. Held:

    1. The trial court in reviewing the board’s determination did apply the correct standard of review.
    2. The defendant township’s zoning ordinances seemingly would allow sanitary landfills in the township in areas zoned for industrial development. However, even if the ordinances did in legal or practical effect unreasonably exclude sanitary landfills, the plaintiffs would still have to show that their land in particular was properly suited for such use. The plaintiffs have not shown that the township’s zoning of the land as residential was unreasonable or that application of the zoning ordinance results in confiscation of the property.
    3. Upon receiving a state license to operate a sanitary landfill, plaintiffs still had the burden of obtaining a variance from the ordinance under which the land was zoned. Plaintiffs failed to satisfy their burden of proving that enforcement of the ordinance in this case would result in confiscation of the land.
    4. It is common practice to allow witnesses to testify at township board meetings without being sworn. The plaintiffs voluntarily agreed to follow such procedure and cannot now be heard to complain that the testimony was incompetent.
    5. The plaintiffs did not carry their burden of showing that if the ordinance were enforced the consequent restrictions on the property would preclude its use for any purposes to which it is reasonably adapted. Rather the evidence indicates that the plaintiffs had the option of continuing a profitable sand and gravel operation or developing the land for residential use, a use for which the land was still suitable and for which it was zoned.
    6. While there is a need for concern for the overall effects on the environment by the disposal of solid waste, there is nothing inherently contrary to public policy in the township’s concern about the potentially deleterious effect of locating a sanitary landfill in the midst of a residential area.
    7. The township Board of Appeals had jurisdiction to determine whether the zoning ordinance was unreasonable or confiscatory as applied to the land in question.
    Affirmed.
    1. Zoning — Reasonableness — Governmental Interest — Requested Change of Classification.
    The correct test for judicial review in zoning cases is that the plaintiff requesting rezoning must show: first, that there is no reasonable governmental interest being advanced by the present zoning classification itself, or, second, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.
    2. Zoning — Ordinances — Presumption of Validity — Appeal and Error.
    A zoning ordinance comes to an appellate court clothed with every presumption of validity.
    3. Zoning — Ordinances — Burden of Proof — Reasonableness.
    It is the burden of the party attacking a zoning ordinance to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property; it must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.
    4. Zoning — Ordinances — Reasonableness.
    An aggrieved property owner, to sustain an attack on a zoning ordinance, must show that if the ordinance is enforced the consequent restrictions of his property preclude its use for any purposes to which it is reasonably adapted.
    5. Appeal and Error — Equity — Supreme Court — Findings of Trial Judge.
    An appellate court is inclined to give considerable weight to the findings of the trial judge in equity cases.

      6. Parties — Admissions — Question of Law — Statement of Fact.
    It is well established that a party concession or admission concerning a question of law or the legal effect of a statute as opposed to a statement of fact is not binding on a court.
    7. Licenses — Zoning — Garbage and Refuse Disposal — Sanitary Landfill — Ordinances — Statutes.
    Receipt of a state license, under a provision of the recently repealed garbage and refuse disposal act, to operate a sanitary landfill did not relieve the licensee from the responsibility of obtaining a license from the local governing body, securing a proper zoning permit and complying with all applicable local ordinances, codes, rules and regulations not in conflict with the act (MCL 325.292; MSA 14.435[2], since repealed).
    8. Zoning — Witnesses — Township Board Meetings — Unsworn Witnesses.
    It is common practice in zoning cases to allow witnesses to testify at township board meetings without being sworn.
    9. Evidence — Objection to Class of Evidence — Waiver — Unsworn Witnesses.
    A party may waive his or her objection to a particular cláss of evidence by stipulation; where a witness gives testimony without first being sworn, an adverse party, by failing to object to that testimony, waives any objection.
    10. Zoning — Ordinances — Disparity in Value — Depreciation in Value.
    A claim that a zoning ordinance is confiscatory as applied to a plaintiffs property is not proven by showing a disparity in value between uses or mere depreciation in value of the land.
    11. Zoning — Board of Appeals — Ordinances — Statutes.
    A township board of zoning appeals is authorized to act upon all questions as they arise in the administration of a zoning ordinance (MCL 125.290; MSA 5.2963[20]).

      Klein & Bloom, P.C., for plaintiffs.

      Bauckham, Reed, Lang, Schaefer & Travis, for defendants.

      Before: M. F. Cavanagh, P.J., and R. M. Maher and W. Van Valkenburg, JJ.

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

   W. Van Valkenburg, J.

The parties to this litigation are now before us for the second time, raising new issues whose resolution will hopefully end this lengthy zoning dispute. See this Court’s prior opinion in Dettore v Brighton Twp, 58 Mich App 652; 228 NW2d 508 (1975).

Plaintiff Dettore owns a 70-acre parcel of land in defendant Brighton Township. With defendant’s permission, plaintiff has for several years operated a sand and gravel mine on his land, a pre-existing nonconforming use in an area now zoned R-l residential.

On June 4, 1973, plaintiff obtained a license from the Department of Natural Resources to operate a sanitary landfill on 20 acres of his land. The Brighton Township Board of Appeals (the board), however, refused to grant plaintiff the zoning variance necessary to expand the scope of his nonconforming use. Plaintiff petitioned the Livingston County Circuit Court for a writ of mandamus to compel the board to issue the variance requested by plaintiff. The circuit judge denied the petition on April 1, 1974, ruling that the board had discretionary power to prohibit plaintiff from exercising the permission granted by the state licensing agency. Without reaching the merits of any other issues raised by plaintiff in circuit court, this Court affirmed the denial of the writ of mandamus. Dettore, supra.

Then, on February 26, 1975, the circuit court ordered this cause remanded to the board for a full hearing to determine whether plaintiffs proposed use of his land as a sanitary landfill was reasonable under the circumstances and whether defendant’s zoning ordinance was unreasonable or confiscatory as applied to plaintiffs property. The hearing was held on April 6, 1976.

After considering the evidence and visiting plaintiffs proposed site and other landfills, the board ruled on July 7, 1976, that plaintiffs proposed use was unreasonable. The 11 reasons cited by the board in support of its conclusion were exactly the same as those it relied upon to deny plaintiff’s original request for a zoning variance. See Dettore, supra, at 657, fn 4, for a list of those reasons. The board also held that defendant’s zoning ordinance was reasonable and not confiscatory because plaintiff could continue to excavate sand and gravel from his land at a profit or, alternatively, could discontinue his mining operation and grade the land for a residential development.

Plaintiff appealed the board’s decision to the circuit court, the parties stipulating that the court’s decision would be based on the pleadings, briefs, the transcript of the board hearing, exhibits, and oral arguments. The circuit court affirmed the board’s decision and plaintiffs appeal to this Court followed as of right.

The seven issues raised by plaintiff on appeal will be considered seriatim.

I. In affirming the board’s decision, did the trial court apply the wrong standard of review?

The parties do not dispute that the applicable standard of review of requests for zoning variances at the time of the board hearing and decision was set forth in Sabo v Monroe Twp, 394 Mich 531; 232 NW2d 584 (1975):

"Even if present zoning is not unreasonable or confiscatory, a proposed use should be permitted if reasonable under all the circumstances. Kropf v Sterling Heights, 391 Mich 139, 164 ff.; 215 NW2d 179 (1974) (concurring opinion).” 394 Mich at 536-537. (Footnotes omitted.)

But in December, 1976, the Supreme Court overruled the Sabo standard in Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976), and readopted the standard promulgated by the majority in Kropf, supra.

As first enunciated in Kropf and reinstated in Kirk, the appropriate test to be applied to zoning challenges is as follows:

" '[FJirst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or
"[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.’ ” 398 Mich at 439, quoting from Kropf, 391 Mich at 158.

The four rules for applying these principles are as follows:

«I < "[T]he ordinance comes to us clothed with every presumption of validity.” ’
"2. ' "[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property * * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.” ’
"3. ' "Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.” ’
"4. ' "This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases.” ’ ” 398 Mich at 439-440. (Citations omitted.)

See also Ed Zaagman, Inc v City of Kentwood, 406 Mich 137; 277 NW2d 475 (1979), reaffirming the standard approved in Kirk.

Plaintiff contends that this case should be remanded to the circuit court for reconsideration under the Kirk standard of review. We find that plaintiff has confused the trial judge’s remand to the board, which was admittedly ordered and accomplished when Sabo was controlling, with the trial judge’s findings and opinion on review of the board decision, which were not issued until February, 1978, well after Kirk had been decided.

In his findings and opinion, the trial judge clearly stated that Kirk was the controlling authority. He set forth the above-quoted principles from Kirk as a guide to his judicial review and proceeded to analyze and decide the case in light of those principles. This situation is clearly distinguishable from the one presented in Michigan National Bank v Windsor Twp, 76 Mich App 387; 256 NW2d 791 (1977), where the trial court did decide the case under Sabo. This Court therefore felt compelled to remand for reconsideration under the superseding Kirk principles.

II. Are sanitary landñlls totally excluded from defendant township and, if so, is plaintiff entitled to a zoning variance permitting him to create a sanitary landffll on property zoned residential?

Plaintiff alleged in his original complaint that "the Brighton Township Zoning Ordinance does not provide for any area for a sanitary landfill, solid waste disposal area,” an allegation which defendant admitted in its answer. Plaintiff on appeal characterizes defendant’s statement as a binding admission in its pleadings. See GCR 1963, 606. On the contrary, it is well established that a party concession or admission concerning a question of law or the legal effect of a statute as opposed to a statement of fact is not binding on the court. 2 Callaghan’s Michigan Pleading & Practice (2d ed), § 21.44, p 43; Thayer v Arnold, 32 Mich 336, 341 (1875). Cf., Michigan Health Care, Inc v Flagg Industries, Inc, 67 Mich App 125, 130; 240 NW2d 295 (1976).

The trial judge ruled as follows on the issue of exclusion of sanitary land fills by defendant:

"There is no evidence in the record that Brighton Township is excluding sanitary landfills entirely by its zoning, or that it excludes them as a practical matter by restricting them to land which is unsuitable for that purpose. The Township’s Master Plan does set aside areas designated as 'Natural Resource Districts’ where sanitary landfills might be established. The record does not show that all requests for permits to establish sanitary landfills in these districts are systematically denied by the Brighton Board or that the areas zoned for this use are unsuitable for it.
"Plaintiff might argue that sanitary landfills are effectively excluded from Township land by the Township’s Conservation of Natural Resources Ordinance, which allows only 'non-putrescible’ fill that contains no building materials, no wood, no garbage, no refuse, and no tires. (It does not appear that plaintiff is making this claim.) These limitations, however, can be supported as valid public health measures, and would not preclude the operation of sanitary landfills absent the prohibited items.”

Although the record below on this issue is minimal, our review of the defendant’s zoning ordinances also tends to show that sanitary landfills would be allowed in township areas zoned for industrial development. Brighton Township Zoning Code, article XIV.

We further note that, even if defendant’s zoning ordinances did in legal or practical effect unreasonably exclude sanitary landfills, plaintiff would still have to show that his land in particular was properly suited for such a use. In Bzovi v Livonia, 350 Mich 489; 87 NW2d 110 (1957), the Supreme Court ruled that the defendant had unreasonably and unconstitutionally prohibited the construction of outdoor drive-in movie theaters within its boundaries. The Court nevertheless found that defendant’s zoning designation of the plaintiff’s property as an agricultural-residential district was reasonable and that defendant could thus legitimately exclude drive-in theaters from that particular area of the city. Compare Lyon Sand & Gravel Co v Oakland Twp, 33 Mich App 614; 190 NW2d 354 (1971), where this Court held that portions of the defendant’s zoning ordinance regulating the mining of sand and gravel were invalid because they were unreasonable and confiscatory as applied to the plaintiff’s land. Defendant was consequently enjoined from interfering with plaintiff’s proposed use of his land for a sand and gravel mining operation.

In the instant case, plaintiff has not shown that defendant’s zoning of his land as residential was unreasonable or that application of defendant’s zoning ordinance results in confiscation of his property. See the discussion of Issue V, infra.

III. Did defendant establish sufficient reasons to deny plaintiff a zoning variance where plaintiff had already been awarded a state permit to operate a sanitary landfill of his property?

MCL 325.292; MSA 14.435(2), the provision of the garbage and refuse disposal act applicable at the time this case was decided, provided that receipt of a state license to operate a sanitary landfill did not relieve the licensee from the responsibility of obtaining a license from the local governing body, securing a proper zoning permit and complying with all applicable local ordinances, codes, rules and regulations not in conflict with the act. For cases interpreting the scope of this provision, see Waterford Processing & Reclaiming Co v Waterford Twp, 25 Mich App 507; 181 NW2d 675 (1970), Haring Twp v Cadillac, 35 Mich App 260; 192 NW2d 384 (1971), Dettore, supra, Jamens v Avon Twp, 71 Mich App 70; 246 NW2d 410 (1976) , rev’d 78 Mich App 289; 259 NW2d 349 (1977), Michigan Disposal, Inc v Augusta Twp, 89 Mich App 557; 280 NW2d 596 (1979). Cf., Nelson v Department of Natural Resources, 88 Wis 2d 1; 276 NW2d 302 (1979).

Upon receiving a state license to operate a sanitary landfill, plaintiff still had the responsibility under MCL 325.292 of obtaining a variance from the ordinance under which his land was zoned residential. Applying the principles outlined in Kropf, see Issue I, supra, we conclude that plaintiff has failed to satisfy his burden of proving that defendant’s enforcement of the ordinance in this case would result in confiscation of plaintiff’s land. See the discussion of Issue V, infra. See also Jamens, supra, 78 Mich App 289, rev’g 71 Mich App 70.

The case upon which plaintiff relies, Waterford, supra, is readily distinguishable because the zoning ordinance applicable to the land for which a state permit had been issued already allowed the establishment of sanitary landfills. Unlike the situation in the instant case, the township in Waterford was attempting to exclude plaintiff’s proposed sanitary landfill on grounds which conflicted with the state garbage and refuse disposal act.

IV. Did the trial court err by relying on unsworn testimony at the board hearing in support of its decision?

It is common practice in zoning cases to allow witnesses to testify at township board meetings without being sworn. The hoard hearing on April 6, 1976, was no exception to that general custom as the only witness testifying under oath was plaintiff’s expert witness. Plaintiff’s counsel was present at the hearing, questioned some of the unsworn witnesses, and made no objection to the procedure. On appeal to the circuit court, the parties indeed stipulated that the trial judge could use the transcript of the hearing in making his findings.

It is well settled that a party may waive his or her right to object to a particular class of evidence by stipulation. Furthermore, where a witness gives testimony without first being sworn, an adverse party, by failing to object to that testimony, waives any objection. Mettetal v Hall, 288 Mich 200, 207-208; 284 NW 698 (1939).

Plaintiff voluntarily selected the procedure he wished to follow before both the board and the circuit court. He may not be heard to complain now that unsworn testimony was incompetent.

V. Did the trial court err in ruling that plaintiff had failed to prove conñscation of his property by application of defendant’s residential zoning ordinance?

To support his argument of confiscation, plaintiff relies chiefly on the testimony of his expert witness, an engineer who stated that plaintiff’s property would be rendered totally worthless at the termination of plaintiff’s mining operation because no one would want to build residential property in a hole 100 feet deep with steeply sloping sides. This evidence was countered at the board hearing by testimony from the chief geologist of a competing gravel mining company. The geologist asserted that his company’s policy was to convert mined property to residential and/or recreational purposes and that the company was willing to forego completely mining out a parcel of land in order to accomplish the conversion to another use.

The trial judge concluded that plaintiff was free to continue his profitable sand and gravel operation as a pre-existing nonconforming use, a use for which the land was well suited. He also accepted the board’s alternative finding that the land, as it existed at the time of the hearing, was still suitable for residential purposes. Finally, the judge deemed speculative plaintiff’s engineer’s testimony regarding the projected worthlessness for residential purposes of plaintiff’s mined-out property and ruled that the board could disregard it. The judge noted that plaintiff’s engineer had not rejected the feasibility of all other potential uses besides a sanitary landfill.

Our review of the evidence also convinces us that plaintiff did not carry his burden under Kirk of showing that, "' "if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.” ’ ” Kirk, supra, 439. See Armstrong v Ross Twp, 82 Mich App 77, 83; 266 NW2d 674 (1978). Although plaintiff might derive more profit from a sanitary landfill than from other potential uses, "[a] showing of confiscation will not be justified by showing a disparity in value between uses” or mere depreciation in value of the land. Kirk, supra, at 444.

VI. Was the trial court judgment denying plaintiff a zoning variance to permit creation of a sanitary landñll on his property against an established public policy?

Plaintiff argues that, as a matter of public policy, the residents of a densely populated area should be required to bear the responsibility for disposal of their own solid waste and should not be allowed to exclude sanitary landfills. Defendant responds that the landfill requirements of the township are being adequately served by existing facilities and that it has the legal right to require plaintiff’s compliance with local health and zoning regulations prior to issuance of a sanitary landfill permit.

While we recognize the serious social and . environmental questions inherent in the issue of solid waste disposal, see Philadelphia v New Jersey, 437 US 617; 98 S Ct 2531; 57 L Ed 2d 475 (1978), we must also respect Michigan law which seeks to strike a balance among the various interests at stake. The garbage and refuse disposal act specifically provides that any person obtaining a state license to operate a sanitary landfill must comply with all applicable local laws, ordinances and regulations not in conflict with the act. MCL 325.292. The state act also allows a local governing body to develop and enforce local ordinances and regulations concerning solid waste disposal which are equal to or more stringent than the provisions of the act. MCL 325.292.

Plaintiffs argument emphasizes the larger social need for sanitary landfills while downplaying the associated problems of environmental protection and economic or esthetic disruption of the immediately surrounding area. We find nothing inherently contrary to public policy in defendant’s concern about the potentially deleterious effect of locating a sanitary landfill in the midst of a residential area. Accord, Nelson, supra.

VII. Did the township Boárd of Appeals lack jurisdiction over plaintiff’s case because plaintiff was seeking to use his property for a purpose which was forbidden by the township zoning ordinances?

MCL 125.290; MSA 5.2963(20), the applicable provision of the township zoning act, MCL 125.271 et seq.; MSA 5.2963(1) et seq., provides that a township board of appeals is authorized to "act upon all questions as they may arise in the administration of the zoning ordinance”. Plaintiff contends that because sanitary landfills are totally excluded from Brighton Township under its zoning ordinance, the township Board of Appeals was not engaged in the "administration of the zoning ordinance” within the meaning of MCL 125.290.

Plaintiffs contention is without merit. For one thing, it has not been established that defendant totally excludes sanitary landfills. Second, plaintiff was applying for a variance to expand the scope of his already nonconforming use under an existing zoning ordinance classifying plaintiffs property as residential. The township Board of Appeals had jurisdiction to determine whether that zoning ordinance was unreasonable or confiscatory as applied to plaintiffs land.

Affirmed. Costs to defendant.

       Although there are multiple parties in this litigation, this opinion refers to the parties in the singular with Dettore as plaintiff and the township as defendant.

       The garbage and refuse disposal act, MCL 325.291 et seq.; MSA 14.435(1) et seq., was repealed by the enactment of a new Solid Waste Management Act, 1978 PA 641, § 37, effective January 11, 1979. This new act, MCL 299.401 et seq.; MSA 13.29(1) et seq., provides for the creation of a state licensing agency in the Department of Natural Resources and for the preparation of enforceable county solid waste management plans to be submitted for approval to the director of the Department of Natural Resources. After a county plan is approved, the director may not issue a license for the development or operation of a new solid waste disposal area unless the facility complies with and is consistent with the applicable county plan. MCL 299.430(3); MSA 13.29(30X3).


source: Caselaw Access Project

author: Beasley, J.

license: Public Domain

text:
    PEOPLE v LEWIS
    Docket No. 78-785.
    Submitted June 12, 1979, at Detroit.
    Decided August 6, 1979.
    Defendant, Charles Lewis, was charged with assault with intent to rob being armed and assault with intent to commit murder. At trial defendant indicated his desire to have only the charged offenses submitted to the jury. The Detroit Recorder’s Court, Joseph E. Maher, J., instructed the jury only as to the charged offenses. After deliberations, the jury returned verdicts of guilty of assault with intent to rob being armed and assault with intent to do great, bodily harm less than murder, which were accepted by the court. Defendant appeals alleging error on the part of the trial court in accepting the verdict of assault with intent to do great bodily harm less than murder, since the jury had never been instructed as to that offense. Held:

    Reversal is mandated where the trial court, having instructed the jury only as to the charged offense, accepts the jury’s verdict of guilty of a lesser included offense. The jury, by rendering a verdict absent any instruction by the court as to the elements of the offense, impermissibly usurped the function of the trial court.
    Reversed as to the conviction for assault with intent to do great bodily harm less than murder, but affirmed as to the conviction for assault with intent to rob being armed.
    Criminal Law — Instructions to Jury — Charged Offenses — Included Offense — Verdict.
    Reversal is mandated where the trial court, having instructed the jury in accordance with the wishes of'defendant only as to the charged offense of assault with intent to commit murder, accepts the jury’s verdict of guilty of the lesser included offense of assault with intent to do great bodily harm less than murder, since, by rendering a verdict absent an instruction by the court as to the elements of the included offense, the jury impermissibly usurped the function of the trial court.
    References for Points in Headnote
    75 Am Jur 2d, Trial § 615.
    5 Am Jur 2d, Appeal and Error §§ 810, 815.

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

      Kenneth J. Bloom, for defendant on appeal.
    Before: J. H. Gillis, P.J., and Beasley and R. M. Ransom, JJ.

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

   Beasley, J.

Defendant was convicted by jury of assault with intent to rob being armed, in violation of MCL 750.89; MSA 28.284, and assault with intent to do great bodily harm less than murder, in violation of MCL 750.84; MSA 28.279. On the first charge he was sentenced to not less than 40 nor more than 60 years in prison and, on the second charge, not less than six and two-thirds nor more than ten years in prison; the sentences to run concurrently with each other and with a previous life sentence for a first-degree murder conviction. Defendant appeals as of right.

At trial, the following discussion occurred between defense counsel and the trial court:

"Mr. Arduin [defense counsel]: I also want to state for the record, Your Honor, that I’ve had a conference with Mr. Lewis in regards to any lesser that he could be charged with lesser included offenses. At this time, Your Honor, he wishes to inform this Court that he does not [sic] you to charge the jury on lesser included offenses.
"The Court: All right.
"Mr. Morgan [the prosecutor]: Could some inquiry be made of the Defendant?
"The Court: Is that true, Mr. Lewis?
"Mr. Lewis [the defendant]: Yes.
"The Court: All right.”

Subsequently, the court instructed the jury on both counts of the information, but no instructions were given as to lesser included offenses. At the end of its charge to the jury, the trial court stated:

"Now, members of the jury, your possible verdicts in this case are as follows: As to Count I, the charge of assault with intent to rob while being armed, the verdict may be guilty or not guilty. As to Count II, assault with intent to commit murder, your verdict may be guilty or not guilty. You may find the Defendant guilty of one count and not guilty or vice versa. Your verdict, however, must be unanimous. It must be the verdict of all 12.”

Nevertheless, the jury returned with the following verdicts:

"The Clerk: How do you find the defendant, Charles Lewis of Count One, Assault with Intent to Rob Being Armed?
"The Foreman: Guilty.
"The Clerk: How do you find the defendant, Charles Lewis, of the charge of Assault with Intent to Murder?
"The Foreman: We found him guilty of Assault with Intent to do great bodily harm less than the crime of murder.”

Defendant claims the trial judge erred in accepting a verdict to an offense which was neither given the jury as a possible verdict, nor whose elements were defined to the jury. We find defendant’s claim to be meritorious and reverse.

The right to a jury trial includes the right of a defendant to have a properly instructed jury pass upon the evidence.

In the instant case, the court instructed the jury as to the possible verdicts. Defendant had been charged with assault with intent to commit murder. Defense counsel requested that the court not charge the jury with any lesser included offenses and the court agreed. At no time did the court discuss any lesser charges in the presence of the jury. Thus, only two choices were available to the jury as possible verdicts on the assault with intent to murder charge. They could find defendant guilty of the charge or they could find him not guilty.

It is the trial judge’s duty to inform the jury on the law, so that they may understand and apply the law to the facts of the case. A defendant has a right to have a properly instructed jury pass upon the evidence, and the instructions must include all the elements of the crime charged.

A jury cannot disregard the court’s instructions and return what appears to them to be an appropriate verdict.

The instant jury was not instructed as to the elements of assault with intent to do great bodily harm less than murder. If a jury is not instructed on lesser included offenses, such offenses are, for all practical purposes, excluded from the jury’s consideration. By rendering a verdict absent any instruction by the court as to the elements of the crime, the jury impermissibly usurped the function of the trial judge._

In view of the fact that the jurors response to the judge’s inquiry as to their verdict on the assault with intent to murder charge was a lesser offense, we must conclude that the jury found defendant not guilty of the only charge which was available to them.

We, therefore, reverse defendant’s conviction of assault with intent to do great bodily harm less than murder. The conviction for assault with intent to rob being armed is affirmed._

        People v Cooper, 73 Mich App 660; 252 NW2d 564 (1977), People v Rappuhn, 78 Mich App 348; 260 NW2d 90 (1977).

        People v Lambert, 395 Mich 296, 304; 235 NW2d 338 (1975).

        People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975), People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967).

       See, People v Gardner, 143 Mich 104, 117; 106 NW 541 (1906).

        People v Henry, 395 Mich 367; 236 NW2d 489 (1975).

       The duty of a judge at trial is stated in MCL 768.29; MSA 28.1052:

        "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. The court shall instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require. The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.”


author:
V. J. Brennan, J.
      D. C. Riley, P.J.

text:
    BONNER v CITY OF BRIGHTON
    Docket No. 78-1208.
    Submitted May 9, 1979, at Lansing.
    Decided August 6, 1979.
    Leave to appeal applied for.
    Leon Bonner brought an action against the City of Brighton, Alan K. Stonex, Mayor of the City of Brighton, Bruce Romer, Brighton City Manager, and Clarence Schacht, Superintendent of the Sewer and Water Division, seeking the restoration of city water service to five rental homes owned- by Bonner, and seeking damages for the discontinuance of services. The water services had been shut off by the city, at a time when the homes were vacant, in an effort by the city to enforce its building code regulations.
    The Livingston Circuit Court, Bert M. Hensick, J., entered a judgment for the defendants, finding that the action taken by the city was warranted by the situation and that the plaintiff was not entitled to damages. The plaintiff appeals, claiming that the trial court’s findings that the city was justified in suspending water services in order to enforce building regulations was error and that the trial court erred in holding that the plaintiff failed to demonstrate any damages flowing from the city’s action. Held:

    1. The city was unjustified in suspending the water service to the plaintiff’s houses as a means of enforcing building regulations.
    2. The trial court was correct in not awarding damages. The plaintiff failed to sustain his burden of proof that the action by the city caused damages to the plaintiff.
    Affirmed as modified.
    D. C. Riley, P.J., dissented. She would hold that, due to deficiencies in the lower court record on the issue of damages, it is impossible to determine the principles of law the trial court applied (and the facts to which they were applied) in reaching its decision. She would remand for a correction of those deficiencies.

      References for Points in Headnotes

       64 Am Jur 2d, Public Utilities §§ 62, 63.

       64 Am Jur 2d, Public Utilities § 64.

       5 Am Jur 2d, Appeal and Error § 839 et seq.

    76 Am Jur 2d, Trial § 1257 et seq.

      Opinion of the Court
    1. Municipal Corporations — Public Utilities — Charge for Services — Discontinuance of Services — Enforcement of Collateral Regulations — Building Code.
    Payment of proper charges for public service supplied is a reasonable condition of the right to receive that service, and for nonpayment of such charges the service may be discontinued; however, service may not be cut off to enforce payment of a disputed claim or a claim for service rendered at some other place or to enforce a collateral regulation; therefore, a city may not discontinue its water service to certain properties in an attempt to force the owner of the properties to comply with the city’s building code regulations.
    2. Municipal Corporations — Public Utilities — Public Water Service — Discontinuance of Service — Damages — Burden of Proof.
    A plaintiff seeking damages from a city and city officials for the improper discontinuance of public water service by the defendants in order to compel the plaintiff to comply with the city’s building code regulations has the burden of proving damages and this burden is not alleviated by the improprieties of the activities of the defendants.
    Dissent by D. C. Riley, P. J.
    3. Courts — Trial Courts — Findings of Fact — Appeal and Error — Court Rules.

      Findings of fact made by a trial court must include as many of the subsidiary facts as are necessary to disclose the steps by which the trial court reached its ultimate conclusion on each factual issue; the ñndings should be made at a level of speciñcity which will disclose to a reviewing court the choices made as between competing factual premises at the critical point that controls the ultimate conclusion of fact (GCR 1963, 517.1).

      Carl J. Schoemer, for plaintiff.

      John R. Brennan, Attorney for City of Brighton (Conlin, Conlin, McKenny & Meader, by Allen J. Philbrick, of counsel), for defendant.

      Before: D. C. Riley, P.J., and V. J. Brennan and G. W. Crockett, Jr., JJ.

       Former Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   V. J. Brennan, J.

Plaintiff is the owner of five rental homes in the City of Brighton which comprise the subject matter of this lawsuit. At a time when the homes were vacant, the water service was shut off by the city in order to enforce its building code regulations. This action was precipitated by the belief that the homes were in violation of the building code and were thus uninhabitable.

Plaintiff then brought this suit in Livingston County Circuit Court seeking restoration of the water service and damages.

After trial without a jury the lower court found in pertinent part that:

"G. The action of the city of Brighton in suspending the water services to the five properties in question was warranted by the peculiar situation that existed.
"H. In failing to appeal to the Brighton Housing Board of Appeals from the action of the City Manager and City inspectors, the Plaintiff unreasonably failed to exhaust his administrative remedy.
"I. The Plaintiff did not establish that such an appeal would have been a useless gesture.
"J. The Plaintiff did not establish that a majority of the seven members of the Housing Board of Appeals would have been prejudiced.
"M. The Plaintiff has not demonstrated that he was legally damaged.
"N. The properties in question were not rented but this was equally due to the inaction or action of the Plaintiff as well as to the suspension of the water service.”

The lower court then issued the following orders:

"IT IS HEREBY ORDERED that the Plaintiff take nothing by his Complaint.
"IT IS FURTHER ORDERED AND ADJUDGED that the City of Brighton shall, upon request of the Plaintiff, resume water service to the five premises in question so that the Plaintiff may comply with all of the housing regulations of the City of Brighton.
"IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff shall not occupy any of the five properties in question until such time as there has been an inspection by the City of Brighton and compliance by the Plaintiff with all of the requirements of the Ordinances and regulations of the City of Brighton.
"IT IS FURTHER ORDERED AND ADJUDGED that if any of the five properties involved in this litigation are occupied prior to the inspection and compliance as required in the preceding paragraph, the City, without notice to the Plaintiff and without Order of the Court, may immediately suspend water services to said properties.”

Plaintiff appeals by right raising three issues, only two of which warrant discussion here.

Plaintiff first claims that the trial court’s finding that the city was justified in suspending water service in order to enforce building regulations was error. We agree.

The leading case on this subject is Ten Broek v Miller, 240 Mich 667; 216 NW 385 (1927), Anno: Right of public utility corporation to refuse its service because of collateral matter not related to that service, 55 ALR 771. In Miller plaintiff sought injunctive relief and damages against defendant for the discontinuance of electric and water service which was predicated upon plaintiffs failure to install a septic tank. (Plaintiff had already installed a cesspool.) In ruling in favor of plaintiff the Court held:

"There is no claim that plaintiff refused to pay the rate charged for water and light, nor is there any claim that he did not pay in accordance with the rules, but defendants- now say the service was cut off because plaintiff would not install a septic tank when ordered to do so. The plaintiff denies that the resort company had any rule or regulation that septic tanks should be installed, and no such rule is shown in the evidence. But even if it did have such a rule, and it was not complied with by plaintiff, that would furnish no adequate reason for refusing to furnish him water and light.
"20 C.J. p. 333, in discussing this question, says:
" 'Payment of proper charges for service supplied is a reasonable condition of the right to receive it, and for nonpayment of such charges the service may be discontinued. But service cannot be cut off to enforce payment of a disputed claim, or a claim for service rendered at some other place, or of a collateral liability not connected with the particular service. ’
"The installing of a septic tank was purely a collateral matter, and had no relation to the duty of defendant company to furnish the light and water and receive its pay therefor. See, also, Phelan v Boone Gas Co, 147 Iowa, 626 (125 NW 208 31 LRA [NS] 319). If plaintiff were violating a rule of the State health department he could be proceeded against for its infraction in the proper forum. This would be a more orderly way of disposing of the dispute than for defendant to substitute itself for a court and punish plaintiff by shutting off his water and light.” 240 Mich 670-671.

In the present case the housing code violations are purely collateral to the discontinuance of the water service and thus Miller controls. In addition, Chapter 60 of the Housing Regulations for the City of Brighton more than adequately provides for enforcement, thus collateral attack is unnecessary. Insofar as the lower court’s ruling is contrary to the above, it is set aside.

Next the plaintiff claims that the trial court erred in holding that he failed to demonstrate any damages flowing from the city’s action.

The plaintiff devotes much attention in his brief to the fact that Chapter 60 of the building regulations was not complied with and the water was shut off before any formal inspection. In addition only one house was inspected under GCR 1963, 310 after plaintiff commenced his suit, and two houses were never inspected. The plaintiff is thus endeavoring to point out improprieties in the city’s activities. However these improprieties do not alleviate the plaintiff from his burden of proving damages.

In order to sustain this burden the plaintiff must show that due to the discontinuance of the water service, the premises in question were uninhabitable or could not have been repaired so as to be made inhabitable. Our review of the record indicates that the premises in question were replete with various code improprieties including falling plaster, defective steps, water seepage and exposed electrical wires. These conditions existed prior to the water service interruption and there was no showing that the city’s action in any way affected the plaintiff’s ability to repair the premises. In this light we cannot say that the lower court’s ruling on damages was clearly erroneous. GCR 1963, 517.1.

The lower court’s order is modified in accordance with this opinion.

G. W. Crockett, Jr., J., concurred.

D. C. Riley, P.J.

(dissenting). I am in accord with the majority opinion save its disposition of the issue of damages.

The trial court’s pertinent findings of fact and conclusions of law, as required by GCR 1963, 517.1, are as follow:

"L. The proofs demonstrated that it was equally advantageous to the plaintiff to not rent the five properties as it was to rent them.
"M. The Plaintiff has not demonstrated that he was legally damaged.
"N. The properties in question were not rented but this was equally due to the inaction or action of the Plaintiff as well as to the suspension of the water service.”
"The findings of fact must include as much of the subsidiary facts as is necessary to disclose the steps by which the trial court reached its ultimate conclusion on each factual issue. The findings should be made at a level of specificity which will disclose to the reviewing court the choices made as between competing factual premises at the critical point that controls the ultimate conclusion of fact. That is, at the point where a given choice as to the concrete facts leads inevitably to the ultimate conclusion, the findings should disclose the choice which was made, so that the appellate court may test the validity of its evidentiary support.” 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 594.

See Peters v Dep’t of State Highways, 400 Mich 50, 64; 252 NW2d 799 (1977), Rockwell & Bond, Inc v Flying Dutchman, Inc, 74 Mich App 1, 8; 253 NW2d 368 (1977), People v Robert Jackson, 63 Mich App 249, 253-254; 234 NW2d 471 (1975).

As is readily evident, the trial judge’s conclusory statements were insufficiently detailed to permit meaningful appellate review. There were five separate houses involved in the present suit. The circumstances surrounding the suspension of water service to each house were different. The evidence as to the condition of the houses was conflicting. Yet, the lower court lumped all the houses together in its findings. It may well be that plaintiff was damaged with respect to some houses and not others.

Because it is impossible from this record to determine the principles of law the trial court applied (and the facts to which they were applied) in reaching its decision, I would remand for a correction of these deficiencies.

       Plaintiff also assailed the constitutionality of the city’s housing regulations but does not appeal from the lower court’s adverse ruling.


author: J. H. Gillis, J. N. A. Baguley, J.

text:
    VIERA v SAGINAW BOARD OF EDUCATION
    Docket No. 78-1655.
    Submitted March 12, 1979, at Lansing.
    Decided August 6, 1979.
    Leave to appeal applied for.
    Robert Viera was employed as a teacher by the Saginaw Board of Education. Viera refused to comply with an agency shop clause of the collective bargaining agreement. A hearing was held pursuant to the teacher’s tenure act and the board discharged Viera ruling that his failure to comply with the provision constituted just and reasonable cause for dismissal. The State Tenure Commission upheld the discharge and no further appeal was taken from that decision. Viera then brought an action in circuit court against the Saginaw Board of Education and the Saginaw Education Association alleging that the agency shop provision was invalid and his discharge for failing to comply with it was illegal and therefore he was entitled to damages for breach of contract. Defendants moved for accelerated and/or summary judgment on the grounds of res judicata, collateral estoppel and failure to exhaust administrative remedies. Saginaw Circuit Court, Joseph R. McDonald, J., denied the motion. Defendants appeal by leave granted. Held:

    The issue of the validity of plaintiffs discharge was decided in the proceeding before the State Tenure Commission and collateral estoppel precludes relitigation of this issue in a separate action between the same parties in circuit court. There was no reason why plaintiff could not have attacked the validity of his dismissal at the commission hearing by arguing that the contract provision was illegal and failure to comply with it was not a just and reasonable cause for dismissal. The State Tenure Commission has authority to decide requisite questions of law and whether the agency shop provision was legal was not outside the scope of the commission’s jurisdiction.

      References for Points in Headnotes

       46 Am Jur 2d, Judgments §§ 397, 415 et seq.

    68 Am Jur 2d, Schools § 183.

       2 Am Jur 2d, Administrative Law § 185.
    68 Am Jur 2d, Schools § 149 et seq.

       68 Am Jur 2d, Schools §§ 186, 189, 192.

       46 Am Jur 2d, Judgments § 522.

       2 Am Jur 2d, Administrative Law §§ 597, 598.

       47 Am Jur 2d, Judgments §§ 415-418.

      Reversed.
    N. A. Baguley, J., dissents. He would hold that plaintiffs choice of forum in which to challenge the legal validity of the shop provision was correct. Jurisdiction of the State Tenure Commission should be limited to questions traditionally arising under the tenure act. Primary jurisdiction over questions of law and interpretation of statutes should be with the courts. Whether an agency shop provision is valid under the public employee relations act is purely a legal question. It is one for the courts to decide, not the State Tenure Commission. Plaintiffs action in circuit court should not be barred by collateral estoppel. At the commission hearing plaintiffs issue was whether he was discharged for just cause. In circuit court he questioned the legal validity of the agency shop clause. The two contentions present separate legal issues which demand different legal analyses and legal proofs. The resolution of one does not invoke the operation of the doctrine of collateral estoppel to bar subsequent litigation of the other issue in another action. He would affirm.
    Opinion of the Court
    1. Schools and School Districts — Teacher’s Tenure Act — State Tenure Commission — Discharged Teacher — Just Cause — Circuit Court — Relitigation of Issues — Estoppel — Statutes.
    Final decision of an issue in one action precludes relitigation of that issue in a separate action between the same parties; while a teacher may assert a claim for breach of contract apart from any remedy provided by the teacher’s tenure act, where it was decided in a proceeding before the State Tenure Commission that a teacher’s discharge was for just and reasonable cause, the issue of the validity of the discharge has been litigated and decided and the operation of collateral estoppel precludes relitigation of the discharge issue in circuit court on theories of illegality, breach of contract and damages (MCL 38.71 et seq.; MSA 15.1971 et seq.).

    2. Schools and School Districts — Teacher’s Tenure Act — State Tenure Commission — Questions of Law.
    The State Tenure Commission has authority to rule on requisite questions of law in deciding actions brought under the teacher’s tenure act.

      3. Schools and School Districts — State Tenure Commission — Discharged Teacher — Hearing — Just Cause — Defenses.
    A discharged teacher should argue all available defenses at his hearing before the State Tenure Commission; where a teacher could have defended against his discharge by arguing that a shop provision was invalid and his discharge for failing to comply with it was illegal, and failed to do so, he cannot claim later that his discharge was not for just and reasonable cause in a circuit court action for breach of contract.
    4. Judgment — Actions — Liability — Collateral Estoppel.
    An action must involve the same parties or their privies as were involved in a prior proceeding for collateral estoppel to apply; however, in a subsequent action against two defendants, one not a party to a first action, accelerated judgment in favor of both defendants because of collateral estoppel is appropriate where plaintiff concedes that any liability of the defendant not a party to the first action is dependent upon the liability of the other.
    Dissent by N. A. Baguley, J.
    5. Schools and School Districts — Discharged Teachers — Teacher’s Tenure Act — Jurisdiction — Breach of Contract — Administrative Remedies — Appeal and Error.

      A circuit court is not automatically deprived of jurisdiction over a teacher’s breach of contract claim for unlawful dismissal simply because the teacher failed to pursue or exhaust alternative administrative remedies under the teacher’s tenure act; the aggrieved teacher may assert a common law contract claim completely apart from any appeal procedures provided by the tenure act.

    6. Estoppel — Collateral Estoppel — Issues — Subsequent Litigation.

      The resolution of one issue does not invoke the operation of the doctrine of collateral estoppel to bar subsequent litigation of another issue in another action where separate legal issues are presented which require different legal analyses and different legal proofs.

    7. Labor Relations — Administrative Law — Teacher’s Tenure Act — State Tenure Commission — Jurisdiction — Courts — Jurisdiction — Questions of Law — Public Employee Relations Act.

      The State Tenure Commission, as an administrative agency, has the powers necessary to carry out and enforce the provisions of

      the teacher’s tenure act and its jurisdiction and administrative expertise is limited to questions traditionally arising under the tenure act; primary jurisdiction over questions of law and interpretation of statutes should be with the courts; therefore, where the purely legal question of whether an agency shop provision is valid under the public employee relations act is presented, the decision is for the courts, not the State Tenure Commission.

      Marsh & Marsh, for plaintiff.

      Foster, Swift, Collins & Coey, P.C. (by James A. White), for Saginaw Education Association.

      Mellinger & Mahlberg, for Saginaw Board of Education.
    Before: Cynar, P.J., and J. H. Gillis and N. A. Baguley, JJ.

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

   J. H. Gillis, J.

Defendants appeal by leave the circuit court’s order denying defendants’ motion for summary or accelerated judgment.

Plaintiff was employed as a teacher by the Saginaw Board of Education commencing in 1960. After plaintiff refused to comply with an agency shop clause of the collective bargaining agreement, a hearing was held pursuant to the teachers’ tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. The board discharged plaintiff on July 16, 1968, ruling that his failure to comply with the provision constituted reasonable and just cause for dismissal.

On appeal to the State Tenure Commission plaintiffs discharge was upheld. No further appeal was taken from that decision.

On May 23, 1974, plaintiff commenced the instant suit in circuit court. Defendants moved for accelerated and/or summary judgment, arguing res judicata, collateral estoppel and failure to exhaust administrative remedies.

The trial judge denied the motion and defendants were granted leave to appeal by this Court.

The essential theory of plaintiffs case is that the agency shop provision was invalid and his discharge for failing to comply with it was illegal. He therefore seeks damages for breach of contract.

While a teacher may assert a claim for breach of contract apart from any remedy provided by the teachers’ tenure act, Bruinsma v Wyoming Public Schools, 38 Mich App 745; 197 NW2d 95 (1972), Shippey v Madison District Public Schools, 55 Mich App 663; 223 NW2d 116 (1974), we conclude the operation of a collateral estoppel precludes plaintiff from recovering damages for breach of contract in this case.

Where an issue has been finally decided in one action it cannot be relitigated in a separate action between the same parties. Jones v Chambers, 353 Mich 674; 91 NW2d 889 (1958).

In the proceeding before the State Tenure Commission it was decided that plaintiffs discharge was for just and reasonable cause. In the instant suit plaintiffs theory of recovery is that the agency shop provision was illegal and hence his failure to comply with it was not just and reasonable cause for dismissal. He therefore seeks damages for breach of contract. Plaintiff concedes as much in the conclusion of his brief wherein he states:

"Plaintiff had a valid contract with the Board of Education of Saginaw. He could only be dismissed for reasonable and just cause. He was dismissed for a cause that was neither reasonable and just but, in fact, illegal.
"He attempted through the Tenure Commission to get his job back but was unsuccessful. He thereafter sued for damages for a breach of an undeniably valid contract.”

The issue of the validity of plaintiffs discharge has been litigated and decided. Plaintiff cannot now attempt to relitigate it.

Moreover, we see no reason why in the hearing before the State Tenure Commission plaintiff could not have attacked the validity of his dismissal by arguing the contract provision was illegal and hence failure to comply with it was not just and reasonable cause for dismissal. Merely because it involved a question of law did not preclude the State Tenure Commission from ruling upon it. In Long v Board of Education Dist No 1, Fractional, Royal Oak Twp & City of Oak Park, 350 Mich 324; 86 NW2d 275 (1957), the Supreme Court stated that the commission has authority to decide "requisite questions of law”. Where, as here, the sole reason for plaintiffs dismissal was his failure to comply with the agency shop provision, the question of whether that provision was legal was not outside the scope of the commission’s jurisdiction.

In addition, while the Supreme Court has ruled that the State Tenure Commission has no jurisdiction where a discharge is for "concerted strike actions”, Rockwell v Crestwood School District Board of Education, 393 Mich 616, 632; 227 NW2d 736 (1975), the Court in that case also indicated that where a teacher alleges he was discharged for activity protected by PERA he can file a charge with MERC and "such a charge would not preclude a teacher from also defending against the discharge at a teachers’ tenure act hearing on the ground that it was not supported by just and reasonable cause”. 393 Mich at 633. Presumably the Court meant the teacher could argue at the tenure act hearing that, because his activity was protected by PERA, MCL 423.201 et seq.; MSA 17.455(1) et seq., the discharge was not for reasonable and just cause.

The same situation is before us now. Plaintiff could have defended against the discharge before the commission on the ground that, because the agency shop provision was illegal, his dismissal was not supported by just and reasonable cause.

We find, therefore, that the issue of the validity of plaintiff’s discharge has been decided by the State Tenure Commission and plaintiff cannot now claim that it was not for just and reasonable cause in a suit for breach of contract.

Of course, in order for collateral estoppel to apply the action must involve the same parties or their privies as were involved in the prior proceeding, Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971). There are two defendants in the instant case, the Saginaw Board of Education and the Saginaw Education Association. The association was apparently not a party at the tenure act hearing. However, because plaintiff concedes that any liability of the association in the instant suit is dependent upon board liability, we conclude it is appropriate that accelerated judgment be granted to both defendants.

Reversed. No costs, a public question being involved.

Cynar, P.J., concurred.

N. A. Baguley, J.

(dissenting). I dissent.

Plaintiff sought to assert two separate and distinct causes of action in two different forums. In his appeal to the State Tenure Commission, plaintiff contended that his failure to comply with the agency shop provision of the collective bargaining agreement was not reasonable and just cause for his dismissal under the teachers’ tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., and demanded reinstatement to his former teaching position. In the instant suit, plaintiff based his claim for relief on a breach of contract theory. He alleged that the agency shop provision was invalid because it violated the public employee relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., that his dismissal for failure to comply with an invalid contractual clause constituted a breach of his employment contract, and that he was thus entitled to damages.

The majority recognizes that a circuit court is not automatically deprived of jurisdiction over a teacher’s breach of contract claim for unlawful dismissal simply because he or she failed to pursue or exhaust alternative administrative remedies under the tenure act. The aggrieved teacher may assert a common law contract claim completely apart from any appeal procedures provided by the tenure act. Bruinsma v Wyoming Public Schools, 38 Mich App 745; 197 NW2d 95 (1972), Shippey v Madison District Public Schools, 55 Mich App 663; 223 NW2d 116 (1974). The majority then concludes, however, that the doctrine of collateral estoppel bars the relitigation of the issue already argued before and decided by the State Tenure Commission, an issue which it broadly denominates as the validity of plaintiffs discharge.

I am forced to disagree because the majority opinion has overstated the breadth of the issue litigated by plaintiff before the State Tenure Commission. Plaintiff’s appeal to the commission only concerned the issue of whether he was justifiably discharged from his employment under the tenure act provision requiring just and reasonable cause for dismissal. MCL 38.101; MSA 15.2001. By contrast, plaintiff’s subsequent suit in circuit court attacked the legal validity of the agency shop clause under a provision of another statute, MCL 423.210; MSA 17.455(10) of the PERA, and alleged the consequent invalidity of his dismissal for failure to comply with that contractual clause. While both contentions relate to the overarching question of whether plaintiff was validly discharged, they are nevertheless separate legal issues demanding different legal analyses and considerations of different legal proofs. The resolution of one issue does not invoke the operation of the doctrine of collateral estoppel to bar subsequent litigation of the other issue in another action.

The majority further reasons that the plaintiff could have and should have raised the issue of the illegality of the agency shop provision under the PERA before the State Tenure Commission. On the contrary, my reading of relevant case law convinces me that the circuit court was the more appropriate forum in which to initially raise this pure question of law and statutory interpretation.

The State Tenure Commission was legislatively created and vested with the powers necessary to carry out and enforce the provisions of the tenure act. MCL 38.131, 38.140; MSA 15.2031, 15.2040, MCL 38.137; MSA 15.2037. As such, "its jurisdiction and administrative expertise is limited to questions traditionally arising under the teachers’ tenure act”. Rockwell v Crestwood School District Board of Education, 393 Mich 616, 630-633; 227 NW2d 736 (1975). The issue which plaintiff raised in the court below involving the legal interpretation of a provision of the PERA was certainly not such a question.

The majority points to certain language in Long v Board of Education Dist No 1, Fractional, Royal Oak Twp & City of Oak Park, 350 Mich 324; 86 NW2d 275 (1957), where the Supreme Court stated that the State Tenure Commission has authority to decide "requisite questions of law”. I find this statement in Long unpersuasive. The Court’s broad directive is merely dictum because the issue of the State Tenure Commission’s authority to decide legal questions was not raised on the facts of the case.

Much more persuasive and pertinent than Long is the decision in Smigel v Southgate Community School District, 388 Mich 531; 202 NW2d 305 (1972), which held that the very question of statutory interpretation which plaintiff raised below was properly brought in circuit court as the judicial forum having primary jurisdiction over the issue. The Court ruled that even MERC, which is the administrative agency authorized to enforce the provisions of the PERA, Rockwell, supra, must yield primary jurisdiction to the courts on the purely legal question of whether an agency shop provision is valid under the PERA.

I would accordingly hold that plaintiffs choice of forum in which to raise his challenge to the legal validity of the agency shop provision under the PERA was correct. Plaintiff was, furthermore, not barred by collateral estoppel from pursuing that claim in a second action before the circuit court. The denial of defendants’ motion for accelerated judgment below should be affirmed.

       See Braxton v Litchalk, 55 Mich App 708; 223 NW2d 316 (1974), and Mazzola v Vineyard Homes, Inc, 54 Mich App 608; 221 NW2d 406 (1974), for succinct explanations of the doctrine of collateral estoppel.

       For instance, the tenure act, MCL 38.172; MSA 15.2054, provides that:
      "No teacher may waive any rights and privileges under this act in any contract or agreement made with a controlling board. In the event that any section or sections of the contract or agreement entered into between a teacher and a controlling board make continuance of employment of such teacher contingent upon certain conditions which may be interpreted as contrary to the reasonable and just causes for dismissals, provided by this act, such section or sections of a contract or agreement shall be invalid and of no effect in relation to determination of continuance of employment of such teacher.” (Emphasis supplied.)
      This section clearly grants the commission authority to declare a clause of a contract or agreement invalid, but only insofar as noncompliance would affect continuation of a teacher’s employment. The commission is not granted the power to declare a contractual provision invalid for other purposes.

       The Supreme Court in Rockwell, supra at 630, opined as follows:
      “The teachers’ tenure act was not intended, either in contemplation or design, to cover labor disputes between school boards and their employees. The 1937 Legislature in enacting the teachers’ tenure act could not have anticipated collective bargaining or meant to provide for the resolution of labor relations disputes in public employment.”

       The Court in Smigel, supra, also held that agency shop provisions were rendered invalid by § 10 of the PERA. MCL 423.210; MSA 17.455(10). The Legislature has, however, since amended the language of former MCL 423.210; MSA 17.455(10) to allow agency shop provisions in collective bargaining agreements. MCL 423.210(2); MSA 17.455(10X2), 1973 PA 25, § 1, effective June 14 (1973). See also Abood v Detroit Board of Education, 60 Mich App 92; 230 NW2d 322 (1975), lv den 395 Mich 755 (1975), in which this Court held that MCL 423.210(2) did not operate retroactively to validate agency shop agreements entered into prior to the effective date of the amendment.


author: V. J. Brennan, J.

text:
    HOLBERN v HOLBERN
    Docket No. 78-1680.
    Submitted May 7, 1979, at Lansing.
    Decided August 6, 1979.
    Plaintiff, Eileen Holbern, was granted a divorce from defendant, Vernon Holbern. The Cheboygan Circuit Court, John Henry Butts, J., awarded to plaintiff, as combined alimony and support, $600 per month for a period of six years. Also awarded to plaintiff was the marital home; however, the award of the home provided that for a period of five years defendant could repossess the premises free and clear of any claim of plaintiff if plaintiff became more than 60 days in arrears in tax or mortgage payments. Plaintiff appealed from the property settlement and alimony provisions of the judgment. The matter was remanded to the trial court for a further determination of the status of defendant’s employment. Philip J. Glennie, J., heard further testimony and found that defendant, an oiler on Great Lakes ore boats, had served as a relief engineer on occasions. It was further found that defendant’s future earnings would decrease because he had to turn down a job as a permanent engineer in order to protect his pension benefits and his 21 years of seniority as an oiler. Held:

    1. The findings of fact by the trial court, although inadequate, do not mandate remand to the trial court, since the Court of Appeals, reviewing equity cases de novo, may make findings of fact upon the record before it.
    2. A determination as to alimony and property division necessitates consideration of: "(1) the duration of the marriage,
    (2) contributions of the parties to the joint estate, (3) age, (4) health, (5) station in life, (6) necessities and circumstances, and (7) earning ability” of the parties.
    3. The combined alimony and child support award is within the discretionary guidelines.
    4. It was improper to make the award of the marital home contingent upon plaintiff wife’s ability to keep the tax and mortgage payments current, since such contingency effectively circumvents the redemption rights of plaintiff wife and greatly diminishes the property award to her.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 703, 822.

       24 Am Jur 2d, Divorce and Separation §§ 630-635.

       24 Am Jur 2d, Divorce and Separation §§ 925, 933.

       [No Reference]

      5. Refusal by defendant husband to accept a better paying job did not amount to a manipulation of employment classification with the intent to deprive plaintiff wife of alimony and support, since the record establishes that the refusal of said employment was based upon the need to protect seniority and pension rights.
    Remanded to the trial court for modification.
    1. Appeal and Error — Findings of Fact — Divorce — Equity — De Novo Review.
    Inadequate findings of fact by the trial court do not mandate remand for further findings in an appeal from the alimony, child support and property settlement portions of a judgment of divorce, since the Court of Appeals, reviewing equity cases de novo, may make findings of fact upon the record before it.
    2. Divorce — Alimony — Property Settlement — Considerations.
    A determination as to alimony and property division necessitates consideration of: "(1) the duration of the marriage, (2) contributions of the parties to the joint estate [sources of property], (3) age, (4) health, (5) station in life, (6) necessities and circumstances, and (7) earning ability” of the parties.
    3. Divorce — Property Settlement — Marital Home — Contingent Award — Redemption Rights.
    It is improper in a divorce judgment to make the award of the marital home to the wife contingent upon the wife’s keeping the taxes and mortgage payments current, with the husband having the right to repossess the home free from any claim by the wife if she becomes more than 60 days in arrears in the mortgage or tax payments, since such a contingency effectively circumvents the wife’s redemption rights and greatly diminishes the property award to the wife.
    4. Divorce — Alimony and Support — Type of Employment — Intent — Seniority and Pension Rights.
    Refusal to accept better paying employment does not amount to a manipulation of employment classification with the intent to deprive a divorced spouse of alimony and support where it is established that the refusal of said employment was based upon the need to protect seniority and pension rights.

      Sumpter, Harrington & Loznak, P.C., for plaintiff.

      Lyon, Mellon & Conboy, for defendant.
    Before: D. C. Riley, P.J., and V. J. Brennan and G. W. Crockett, Jr., JJ.

       Former Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   V. J. Brennan, J.

On March 31, 1978, a judgment of divorce was granted to the plaintiff, Eileen Holbern, against defendant, Vernon Holbern. The lower court’s order, in pertinent part, awarded to plaintiff $600 per month combined alimony and child support for six years. In addition, plaintiff received the marital home valued at $16,000, which was encumbered by a $5,500 mortgage. However, the award provided that for a period of five years, if the plaintiff became more than 60 days in arrears in mortgage or tax payments, defendant could repossess the premises "free and clear of any claim of plaintiff’. Plaintiff appeals from that portion of the judgment concerning property settlement and alimony.

Plaintiff contends that the lower court’s findings of fact regarding alimony were nonspecific and conclusory thus warranting remand. GCR 1963, 517.1 as applicable provides:

"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts.”

The rule contemplates that level of specificity that will disclose to the reviewing court the controlling choices made as between competing factual assertions. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 594. Insomuch as the lower court’s findings merely state conclusions without factual bases, they are inadequate. However remand is unnecessary since in equity cases our review is de novo, and we may make our findings based upon the record before us. Burdick v Hartwig, 37 Mich App 704; 195 NW2d 334 (1972). Our review will thus address plaintiiFs various claims of abuse of discretion regarding alimony and property division.

Any determination as to alimony and property division necessitates an examination of "(1) duration of the marriage, (2) contributions of the parties to the joint estate [sources of property], (3) age, (4) health, (5) station in life, (6) necessities and circumstances and (7) earning ability” of the parties. Charlton v Charlton, 397 Mich 84, 95, fn 5; 243 NW2d 261 (1976), see Ross v Ross, 24 Mich App 19; 179 NW2d 703 (1970), Hoffman v Hoffman, 9 Mich App 715; 158 NW2d 78 (1968).

The defendant in the present case has been employed as an oiler for United States Steel’s Great Lakes fleet since 1957. His income in 1973 was $18,480.26; in 1974, $23,130.35; in 1975, $28,615.70; in 1976, $28,210.92 and in 1977, $25,427.03. At trial defendant anticipated his 1978 income to be $19,584. Additionally defendant testified that he would receive $103 per week in unemployment from the State of Minnesota during the three winter months. Defendant’s present status of employment was that of oiler; but, on occasions, he served as a relief engineer. Defendant testified that his future earnings would decrease because, in order to protect his pension and 21 years seniority as an oiler, he had to turn down the job of permanent engineer. Defendant would have a job as an oiler so long as one boat of U.S. Steel’s Great Lakes fleet was sailing. However, if he took the permanent engineer’s job, he would have no seniority and as soon as one boat was laid up his job would vanish.

As an oiler, defendant would receive a pension estimated at around $420 per month when he turned 65. Defendant would also receive social security but was unsure of the amount.

The marital home carried a $5,500 mortgage, and there was a $1,500 balance on a home improvement loan. In addition, $380 was due in past taxes on the home. Defendant was willing to release all title to the home.

Plaintiff testified that the monthly household bills were $1,014.50. She further stated that the $400 she was receiving every two weeks was occasionally not enough to provide for the family. Her own health was bad because of a nervous condition which prevented her from working. Other than babysitting she had not worked outside of the home for 15 to 20 years.

The nature of defendant’s job classification (oiler/engineer) was unclear at trial and the cause was remanded by this Court for further findings. On remand it was disclosed that in 1978, defendant, while still classified as an oiler, worked as an engineer (which paid an additional $10 per day) in a temporary capacity 50% of the time. Defendant then projected his 1978 earnings to be some $3,000 above the 1977 income level. However, the 1978 income projection included defendant’s being hired on to the winter crew in 1978. The defendant was unable to hire on to the winter crew in 1979 due to lack of seniority, and his 1979 income would be reduced accordingly.

Taking into account the nature of the combined alimony and child support award along with the plaintiff’s limited ability to supplement her income, the $600 per month award is well within the discretionary guidelines. We point out that either party may petition the lower court for a review due to changed circumstances.

We next address the lower court’s award of the marital home to plaintiff contingent upon her keeping taxes and mortgage payments current. Such an award is without legal precedent in this state and is improper. The contingency effectively circumvents plaintiff’s redemption rights, which are designed to protect those who are necessitous during financial crisis. The burden placed upon plaintiff by the lower court almost guarantees the defendant possession of the home in the future and, therefore, greatly diminishes the award. The contingency portion of the reward is vacated.

As to plaintiff’s other allegations of error, we find that defendant’s pension was taken into account by the lower court in its award. In addition, the defendant’s action in turning down the permanent engineer’s job did not amount to a manipulation of employment classifications intended to deprive the plaintiff of her rights but rather was a protective measure by defendant to insure his employability and pension rights. In this regard, plaintiff’s rights were also protected.

Remanded to the lower court with directions to modify the property settlement in accordance with this opinion.

       The trial court’s award in this regard is rather ambiguous as to whether the $600 figure will decrease as three of the four children of the marriage reach majority. Our review of the transcript reveals defendant’s willingness to pay the sum of $600 a month for six years irrespective of the children’s coming of age, and as such the award is so interpreted.

       Reversed in a memorandum opinion, 387 Mich 770 (1972). However, it is unclear in this decision whether the Supreme Court rendered appellate courts powerless to make findings in equity cases, or whether the Supreme Court made its own findings contrary to those of the Court of Appeals. In any event the summary decision is of no precedential value.


author: Cynar, J.

text:
    AMERICAN AMUSEMENT COMPANY, INC. v DEPARTMENT OF TREASURY MOHNEY v DEPARTMENT OF TREASURY
    Docket Nos. 78-2535, 78-2536.
    Submitted May 1, 1979, at Grand Rapids.
    Decided August 6, 1979.
    Leave to appeal applied for.
    Both plaintiff American Amusement Company, Inc. and plaintiff Harry V. Mohney were assessed a use tax in 1973 for the exhibition of noncopyrighted "adult films”. In each case, the plaintiff paid the tax under protest and instituted suit against the Department of Treasury to recover the taxes paid. Plaintiffs argued that the provision of the Use Tax Act which exempted copyrighted, but not noncopyrighted, motion-picture films violated the equal protection clause of the Constitution. The cases were consolidated in the Court of Claims. The Court of Claims, Leo W. Corkin, J., agreed that the distinction between copyrighted and noncopyrighted films was violative of equal protection; however, rather than extending the exemption to noncopyrighted films, it concluded that the exemption for copyrighted films should be struck down. Plaintiffs’ claims for refunds were accordingly denied. Plaintiffs appeal. Held:

    1. Tax legislation, being clothed with a presumption of constitutionality, will be held to be violative of the constitutional right to equal protection only where it is shown that the classification scheme bears no rational basis to any conceivable legislative purpose which might support it.
    2. The exemption from taxation of copyrighted motion-picture films in the Michigan Use Tax Act does not violate the constitutional right to equal protection even though noncopyrighted films are not also exempt, since there is a rational basis upon which the Legislature could distinguish between copyrighted and noncopyrighted films. Copyright protection promotes originality, advances in knowledge generally and the development of a centralized body of information relating to the ownership of motion-picture films.
    3. The claims to recover the taxes paid under protest were properly denied, since the distinction between copyrighted and noncopyrighted motion-picture films is supported by a rational basis.

      References for Points in Headnotes

       68 Am Jur 2d, Sales and Use Taxes § 27.

       68 Am Jur 2d, Sales and Use Taxes § 28.

      Denial of refunds is affirmed.
    1. Taxation — Constitutional Law — Equal Protection — Presumptions — Rational Basis — Legislative Purposes.
    Tax legislation, being clothed with a presumption of constitutionality, will be held to be violative of the constitutional right to equal protection only where it is shown that the classification scheme bears no rational basis to any conceivable legislative purpose which might support it, said legislative purposes including the encouraging of useful industries and the promotion of the operation of charitable, religious or scientific organizations.
    2. Taxation — Use Tax Act — Motion-Picture Films — Copyrights — Constitutional Law — Equal Protection — Rational Basis — Statutes.
    The Michigan Use Tax Act, which exempts copyrighted motion-picture films from taxation while applying that tax to noncopyrighted films, does not violate the constitutional right to equal protection, since copyright protection promotes originality, advances in knowledge generally and the development of a centralized body of information relating to the ownership of motion picture films and thereby provides a rational basis for the different treatment of copyrighted and noncopyrighted motion-picture films (MCL 205.94[o]; MSA 7.555[4][o]).

      Sanborn & O’Neill', P.C., for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard R. Roesch and E. Raymond O’Malley, Assistants Attorney General, for defendant.
    Before: Mackenzie, P.J., and D. E. Holbrook, Jr., and Cynar, JJ.
   Cynar, J.

In 1973, plaintiff American Amusement Company, Inc., was assessed a use tax of $14,378.84 for the exhibition of noncopyrighted "adult films”. In the same year, plaintiff Harry V. Mohney was assessed a tax of $2,414.65 as a result of his showing similar films. In each case, the plaintiff paid the tax under protest and instituted suit in the Court of Claims to recover the amount paid. They now appeal as of right from a decision of the Court of Claims denying their requests for refunds.

MCL 205.93; MSA 7.555(3) provides for the levying of a "specific tax for the privilege of using, storing or consuming tangible personal property in this state”. Other sections of the Use Tax Act, MCL 205.91 et seq.; MSA 7.555(1) et seq., provide numerous exemptions from this tax. It has also been held that property subject to sales tax under the sales tax act, MCL 205.51 et seq.; MSA 7.521 et seq., is also exempt from the use tax. Banner Laundering Co v State Board of Tax Administration, 297 Mich 419, 428; 298 NW 73 (1941).

Plaintiffs did not contend that they fit into any of the statutory or judge-made exemptions to the use tax. Rather, they noted that MCL 205.94(o); MSA 7.555(4)(o), provides an exemption for copyrighted motion-picture films and argued that the disparate treatment between copyrighted and non-copyrighted films violated equal protection. They further argued that both copyrighted and noncopyrighted films should fall within the statutory exemption.

The trial judge agreed that the distinction between the two types of films violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. However, he concluded that this violation necessitated striking down the exemption for copyrighted films rather than applying it to all films. Accordingly, he concluded that the equal protection violation present in the use tax scheme did not relieve plaintiffs of their liability to pay the use tax in this instance.

We agree with the trial court’s conclusion that plaintiffs are liable for the payment of use tax under MCL 205.93; MSA 7.555(3). However, we disagree with his conclusion that equal protection is violated as a result of the disparate treatment of copyrighted and noncopyrighted films under the Use Tax Act.

As a general rule, the Legislature’s enactments are clothed with a presumption of constitutionality. People v McQuillan, 392 Mich 511, 536-537; 221 NW2d 569 (1974). This presumption appears to be especially strong where tax legislation is concerned. In Lehnhausen v Lake Shore Auto Parts Co, 410 US 356, 364; 93 S Ct 1001; 35 L Ed 2d 351 (1973), the United States Supreme Court stated:

" '[I]n taxation, even more than in other fields, legislatures possess the greatest freedom in classification.’ * * * There is a presumption of constitutionality which can be overcome 'only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.’ ”

Similarly, in Thoman v Lansing, 315 Mich 566, 576; 24 NW2d 213 (1946), our Supreme Court noted:

" 'The presumption of constitutionality following taxing statutes is stronger than applies to laws generally and only where a taxing system clearly and palpably violates the fundamental law will it be held invalid.’ ”

However, this is not to say that the states are exempt from the requirements of the equal protection clause of the Fourteenth Amendment when enacting taxation legislation. As stated in Allied Stores of Ohio, Inc v Bowers, 358 US 522, 527-528; 79 S Ct 437; 3 L Ed 2d 480 (1959):

"[T]here is a point beyond which the State cannot go without violating the Equal Protection Clause. The State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. The rule often has been stated to be that the classification 'must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.’ * * * That statute may discriminate in favor of a certain class does not render it arbitrary if the discrimination is founded upon a reasonable distinction, or difference in state policy.”

See also WS Butterfield Theatres Inc, v Dep’t of Revenue, 353 Mich 345, 353; 91 NW2d 269 (1958).

In determining whether a particular taxation scheme is rationally based it must be remembered that the equal protection clause:

" 'imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value.’ ” Lehnhausen v Lake Shore Auto Parts Co, supra, 359-360.

Our Supreme Court echoed this viewpoint in Ban ner Laundering Co v State Board of Tax Administration, supra, 433, stating:

" 'Granting the power of classification, we must grant Government the right to select the differences upon which the classification shall be based, and they need not be great or conspicuous. * * * The State is not bound by any rigid equality. This is the rule; its limitation is that it must not be exercised in "clear and hostile discriminations between particular persons and classes.” * * * Thus defined and thus limited, it is a vital principle, giving to the Government freedom to meet its exigencies, not binding its action by rigid formulas but apportioning its burdens and permitting it to make those "discriminations which the best interest of society require.” ’ ”

In order to prevail on their claim of an unconstitutional classification in the Use Tax Act, plaintiffs must "negative every conceivable basis which might support it”. Lehnhausen v Lake Shore Auto Parts Co, supra, 364. See also WS Butterfield Theatres Inc v Dep’t of Revenue, supra, 353. This burden extends beyond showing that the classification bears no rational basis to revenue raising. Classifications in tax schemes have been upheld on such bases as encouraging useful industries to locate within the state, Allied Stores of Ohio v Bowers, supra, 528-529, or promoting the operation of charitable, religious, or scientific organizations. Banner Laundering Co v State Board of Tax Administration, supra, 431.

Plaintiffs have failed to meet their burden in the present case. The different treatment between copyrighted and noncopyrighted films may be upheld on a number of different grounds. Since copyright protection extends only to "original works of authorship”, 17 USC 102(a), exempting copyrighted films from the Michigan use tax tends to promote originality and thereby advances knowledge generally. Further, by encouraging one to copyright one’s films, the use tax exemption promotes the development of a centralized body of information relating to the ownership of motion-picture films. Neither of these grounds have in any way been refuted by plaintiffs. We therefore conclude that the distinction between copyrighted and noncopyrighted films in the Michigan Use Tax Act is supported by a rational basis and thus comports with the requirements of the equal protection clause.

Thus, while we have traveled along a different road of reasoning, the journey ends with the same result. The judgment of the trial court, denying plaintiffs’ claims for refunds of the taxes paid under protest, is affirmed. Costs to defendant.

       That section states:
      "The tax levied shall not apply to:
      "(o) Newspapers and periodicals, as admitted under present federal postal laws and regulations as second class mail matter or as controlled circulation publications or qualified to accept legal notices for publication in this state, as defined by law, or any other newspaper or periodical of general circulation, established at least 2 years, and published at least once a week, and copyrighted motion-picture ñlms. All tangible personal property used or consumed and not becoming a component part of newspapers and periodicals, and copyrighted motion-picture files is subject to tax.” (Emphasis added.)

       We note that the trial judge also stated that the copyrighted film exemption in the use tax scheme violated the uniform taxation provision of Const 1963, art 9, § 3. Under this provision a classification in a taxing scheme is upheld if supported by a "reasonable basis”, Avis Rent-A-Car System, Inc v Romulus, 65 Mich App 119, 129; 237 NW2d 209 (1975), aff'd 400 Mich 337; 254 NW2d 555 (1977). Thus, for the same reasons that the classification here was upheld against the equal protection challenge, no violation of the uniform taxation clause is present here.