author: Quinn, J. T. G. Kavanagh, P. J.

text:
      In re APPORTIONMENT OF THE ONTONAGON COUNTY BOARD OF SUPERVISORS—1967. PETITION OF CARP LAKE TOWNSHIP.
    Opinion of the Court.
    1. Counties — Board of Supervisors — Apportionment—Constitutional Law — Statutes.
    Apportionment plan authorized by State statute for election of county board of supervisors, not providing for 1 supervisor from each organized township, held, unconstitutional, since State Constitution requires such provision (Const 1963, art 7, §7; PA 1966, No 261, §7).
    2. Same — Board of Supervisors — Apportionment—Statutes—Constitutional Law.
    State statute authorizing election of county board .of supervisors, not providing for 1 supervisor from each organized township, held, unconstitutional, since State Constitution requires sueh provision (Const 1963, art 7, § 7; PA 1966, No 261, § 7).
    3. Costs — County Board of Supervisors — Apportionment.
    No costs are allowed in action to review constitutionality of ap- ' portionment plan authorized by State statute, a public question being involved (PA 1966, No 261, § 6).
    References for Points in Headnotes
    '1, 2] 26 Am Jur 2d, Elections §§ 12-15, 31.
    '3] 5 Am Jur 2d, Appeal and Error § 1009.
    ‘4] 26 Am Jur 2d, Elections § 31.
    5] 20 Am Jur 2d, Courts § 189.
    '6] 26 Am Jur 2d, Elections § § 12-15, 31.

      Dissenting Opinion.
    T. G. Kavanagh, J.
    4. Constitutional Law — Equal Protection — Townships—Population — Supervisors.

      Section of Constitution allocating to each township only 1 supervisor irrespective of population is contrary to the equality clause of the Constitution of the United States (US Const, Am Id; Mich Const 1963, art 7, § 7).

    5. Courts — Advisory Opinion — Precedents.

      An advisory opinion of the Supreme Court as to the constitutionality of a statute, made at the request of the governor prior to its becoming effective, is not a judicial determination, or a precedent of any hind or enforceable against anyone, including the Court itself, and does not have stare deeisis effect (Const 1963, art 3, § 8; PA 1966, No 861).

    6. Counties — Board oe Supervisors — Apportionment—Statute— Constitutional Law.

      State statute authorizing election of members of county board of supervisors, being in conflict only with the section of State Constitution requiring 1 supervisor from each organized township irrespective of population, held, valid and enforceable, notwithstanding such conflict, since that provision of the Constitution violates the equality clause of the Constitution of the United States (US Const, Am 14; Mich Const 1963, art 7, §7; PA 1966, No 861).

    Statutory action in Court of Appeals by Carp Lake Township to review apportionment plan for the Board of Supervisors of Ontonagon County.
    Submitted Division 2, October 10, 1967, at Lansing.
    (Docket No. 3,714.)
    Statute and plan declared unconstitutional February 19, 1968.
    Rehearing granted April 11,1968.
    See 11 Mich App 348.

      Messner & LaBine, for plaintiff, Carp Lake Township.

      Allen R. Briggs, Ontonagon County Prosecuting Attorney, for defendants.

      Amici Curiae:

      Frank J. Kelley, Attorney General, and Robert A. Derengoski, Solicitor General, for the Attorney General.

      Rothe, Marston, Masey, Sachs & O’Connell, for Michigan State AFL-CIO.

      Tom Downs, for Marvin R. Stempien, former chairman of apportionment committee of State house of representatives.

      Charles A. Larnard, for Michigan State- Association of Supervisors.

      Vander Veen, Freihofer & Cook, for Kent County.
   Quinn, J.

Pursuant to the provisions of PA 1966, No 261 (MOLA, §46.401 et seq. [Stat Ann 1968 Cum Supp § 5.359(1) et seq.]), the hoard of supervisors of Ontonagon county adopted and filed an apportionment plan for the election of a board of supervisors for the county. This plan did not provide for one supervisor from each organized township as required by Const 1963, art 7, § 7. Within the statutory time limit and pursuant to PA 1966, No 261, § 6 (MCLA, § 46.406 [Stat Ann 1968 Cum Supp § 5.359(6)]), a registered voter of the county filed a petition with the Court of Appeals to review such plan. By order dated June 29, 1967, the Court of Appeals granted the petition, invited certain amicus curiae briefs, established deadlines for tlie filing of all briefs, set the matter for submission at the October, 1967, session of the Court, and requested all those filing briefs to brief 3 specific questions.

We gratefully acknowledge the assistance given us by all briefs and the oral arguments.

It is self-evident that this plan and PA 1966, No 261, which authorized the plan, are in direct conflict with Const 1963, art 7, § 7, and that both the plan and statute are unconstitutional under the 1963 Constitution of this State. All those involved in this litigation concede this fact. The inquiry then becomes, is Const 1963, art 7, § 7, in conflict with the United States Constitution?

In spite of the merit of the arguments advanced by those urging an affirmative answer to this question, this Court cannot adopt such arguments as a basis for decision if there is controlling law to the contrary. There is such controlling law. In Advisory Opinion re Constitutionality of PA 1966, No 261 (1967), 379 Mich 55, a clear majority of the Supreme Court unreservedly held that Const 1963, art 7, § 7, was constitutional and PA 1966, No 261, unconstitutional, the language of Justice Black in his concurring opinion that advisory opinions are nonprecedential and nonadjudicatory notwithstanding.

We are constrained to hold PA 1966, No 261, and the plan here reviewed unconstitutional and of no effect. This conclusion obviates discussion of the “guideline” question arising from the provisions of PA 1966, No 261, § 4(a) through (h).

An appropriate order may enter bnt without costs, a public question being involved.

J. H. Gtllis, J., concurred with Quinn, J.

T. G. Kavanagh, P. J.

(dissenting). For the reasons set forth in the opinion of Mr. Justice Black in Advisory Opinion re Constitutionality of PA 1966, No 261 (1967), 379 Mich 55,1 believe the opinion therein is neither precedential nor adjudicatory.

For the reasons set forth in the opinion of Mr. Justice Souris in Brouwer v. Kent County Clerk (1966), 377 Mich 616, I conclude Michigan Constitution of 1963, art. 7, § 7,' is void as violating the equal protection clause of the Constitution of the United States, Am 14, § 1.

PA 1966, No 261, being in conflict only with article 7, § 7, and in all other respects consonant with the Michigan Constitution of 1963, is valid and enforceable.

The plan adopted by the Ontonagon board of supervisors for the apportionment of that board appears to comport completely with PA 1966, No 261 and should be approved.

       Sec. 7. A board of supervisors shall be established for eaeh organized county consisting of one member from eaeh organized township and such representation from cities as provided by law.

       Sec. 6. Any registered voter of the county within 30 days after the filing of the plan for his county may petition the Court of Appeals to review such plan to determine if the plan meets the requirements of the laws of this State. Any finding of the Court of Appeals may be appealed to the Supreme Court of the State as provided by law.

       (a) Is Const 1963, art 7, § 7 in conflict with the United States Constitution;
      (b) Is PA 1966, No 261 constitutional;
      (c) The relevant case law from any jurisdiction in the United States that interprets or defines similar provisions for “guidelines for apportionment” as contained in PA 1966, No 261, § 4(a) through (h).


source: Caselaw Access Project

author: Lesinski, C. J.

license: Public Domain

text:
    MAZO v. CITY OF DETROIT.
    1. Municipal Corporations — Zoning—Liquor Licenses — Transfer —Waiver.
    Transfer of location of liquor licenses to another building 160 feet away, held, in violation of city ordinance where there is more than 1 bar within 1000 feet of the boundaries of plaintiff’s proposed site unless limitation is waived by city council (Detroit Zoning Ordinance, § 10-ID).
    2. Same — Zoning Ordinance — Nonestoppel.
    Nonestoppel of municipalities to enforce their zoning ordinances is the general rule in this State, in the absence of exceptional circumstances.
    3. Same — Zoning Ordinances — Reliance Upon Approval.
    Incurrence of expenses in reliance upon conditional zoning approval held, not justifiable reliance, where plaintiff knew she must obtain an occupancy permit and comply with parking regulations.
    4. Same — Zoning Ordinance — Waiver Provision — Constructive Notice.
    Plaintiff, claiming estoppel of city to enforce zoning ordinance prohibiting use of building for a bar except on waiver by city eouneil because of erroneous approval of use by city department of buildings and safety engineering, is charged with constructive knowledge that council must waive the ordinance provision, and that department of buildings or police department could not waive (Detroit Zoning Ordinance § 10-ID).

      References for Points in Headnotes
    [I] 30A Am Jur, Intoxicating Liquors § 140.
    [2, 4, 5] 58 Am Jur, Zoning §§ 178, 192, 193.
    [3] 58 Am Jur, Zoning §§ 194, 201, 202.
    [6] 37 Am Jur, Municipal Corporations §§ 222, 260, 261, 264, 268.
    [7] 58 Am Jur, Zoning §§ 146, 147, 153, 155.
    [8] 58 Am Jur, Zoning §| 146, 155.
    Zoning: changes, repairs, or replacements in continuation of nonconforming use. 87 ALR2d 4.
    [9] 58 Am Jur, Zoning §§ 25, 28, 30, 146.
    [10] 58 Am Jur, Zoning § 258.
    [II] 30A Am Jur, Intoxicating Liquors § 140; 58 Api Jur, Zoning 8 258.

      5. Same — Zoning—Illegal Permits — Estoppel.
    City is not estopped to enforce its zoning ordinance because plaintiff made expenditures in reliance upon erroneous approval by city department of buildings and safety engineering of proposed use of a building for a bar, when zoning ordinance forbade the use except on waiver by city eouneil (Detroit zoning ordinance, § 10-ID).
    6. Same — Limitation op Powers op Agents.
    All persons dealing with municipalities and their agents aet with constructive, if not actual, knowledge of the limitations upon the delegated powers of cities and their instrumentalities.
    7. Same — Zoning Regulations — Transfer of Nonconforming Use.
    Zoning regulations may confer a right to a given nonconforming use of property, but do not confer a right to transfer that use to another location..
    8. Same — Nonconforming Use.
    A nonconforming use may be continued provided there is no physical change other than necessary maintenance and repairs (Detroit Zoning Ordinance § 3.3).
    9. Same — Zoning Ordinances — Improvement of Residential Districts — Nonconforming Uses.
    A city can use its zoning ordinances to improve residential districts by refusing to authorize additional nonconforming businesses.
    10. Same — Review—Zoning.
    A decision of city common council which is supported by competent, material, and substantial evidence on the whole reeord is final insofar as it involves discretion or the findings of fact (Const 1963, art 6, § 28).
    11. Same — Review—Reversal por Abuse op Discretion.
    Denial of waiver of location limitation to use building for a bar by city council, after study and report by city plan commission held, not to be an abuse of discretion under evidence presented (Detroit Zoning Ordinance, §§ 3.3,10-ID, 18.3).

      12. Costs — Public Question — Waiver op Zoning Ordinance-Limitation.
    No costs are allowed on. appeal by city from waiver of limitation in its zoning ordinance granted by eireuit court, a public question being involved.
    Appeal from Wayne; Bobn (Theodore B.), J.
    Submitted Division 1 October 5, 1967, at Detroit.
    (Docket No. 3,767.)
    Decided February 26,1968.
    Rehearing denied April 8,1968.
    Complaint by Claire S. Mazo against the City of Detroit and its common council seeking reversal of denial of her petition for waiver of a zoning ordinance. Judgment for plaintiff. Defendant appeals.
    Beversed.

      Klayman & Stone, for plaintiff.

      Robert Reese, Corporation Counsel, John F. Hathaway, Assistant Corporation Counsel, and Ronald G. Winiemlco, Assistant Corporation Counsel, for defendant.

      Amicus Curiae:

      Robert E. Childs, for Begent Park Homeowners’ Association.
   Lesinski, C. J.

From a denial by the Detroit common council of her petition for waiver of a zoning ordinance whose terms would prohibit the contemplated use of her leased premises as a bar, plaintiff sought relief in the circuit court, which decided that plaintiff had the right to use her premises as a bar.

The following issues are presented to this Court for review:

1. Whether the transfer of location of the liquor licenses added another bar to the area within the contemplation of the ordinance.

2. Whether the city is estopped to enforce its ordinance because of plaintiff’s reliance on unauthorized zoning approval.

3. Whether the action of the common council in denying plaintiff’s petition for waiver constituted an abuse of discretion.

The plaintiff, Claire S. Mazo, applied to the Michigan liquor control commission July 8, 1965, for a transfer to her of the ownership and location of class “C” and “SDM” liquor licenses previously issued for 15232 East Eight Mile road in the city of Detroit. Since she had been unable to negotiate a lease at this location, plaintiff decided to establish her bar at 15270 East Eight Mile, about 160 feet east of 15232 East Eight Mile road, on the south side of East Eight Mile road, between Hayes and Brooks. From the Detroit’ police department, to whom the liquor control commission referred her application, plaintiff received a form to be submitted to the Detroit department of buildings and safety engineering, for the approval of the zoning status of her proposed location. On November 4, 1965, she obtained from this department a rubber-stamped approval:

“Department of Buildings ■ and Safety Engineering City of Detroit Nov 4,1965 _
_ Bureau of Buildings Examined and Approved Under Zoning Ordinance by ‘Richardson’ ”

After receipt of this approval, plaintiff negotiated a lease for 15270 East Eight Mile and begun to make expenditures in preparation for opening a bar.

Meanwhile, her application followed its course. The Detroit police department notified the Michigan liquor control commission by letter dated November 12, 1965, that the proposed location was in compliance with the zoning ordinance. On February 28, 1966, the bankruptcy court, which had gained title to the licenses by reason of the former licensee’s bankruptcy, approved an agreement for assignment of the licenses to plaintiff.

In April, 1966, the Detroit police department, pursuant to a request by the liquor control commission, conducted a survey in the neighborhood of 15270 East Eight Mile regarding plaintiff’s proposed establishment of a bar. A majority of those surveyed approved, and on August 17, 1966, the department approved the transfer of ownership and relocation of the licenses.

But later, when plaintiff applied again to the Detroit department of buildings and safety engineering for a building permit to make alterations, the department refused the permit and withdrew its earlier approval of zoning status, having realized that plaintiff’s proposed use of 15270 East Eight Mile was prohibited by section 10-ID of the Detroit zoning-ordinance, applicable to B-2 districts, which reads in its pertinent part as follows:

“pool and billiard rooms, pawnshops, shoeshine parlors, second-hand stores, taxi dance halls, and establishments used for the sale of beer and/or intoxicating liquors for consumption on the premises, provided that any of these uses established after the effective date of this amendment shall be so located that there is not in existence more than 1 lodging-house, hotel, other pool or billiard room, pawnshop, shoeshine parlor, second-hand store, taxi dance hall, or establishment used for the sale of beer and/or intoxicating liquors for consumption on the premises within 1,000 feet of the boundaries of the site of the proposed said use. This location limitation may be waived by the common council after report and recommendation from the city plan commission and upon finding that such use (1) will not be injurious to the contiguous or surrounding neighborhood, (2) will not be conducive to the spread of blight by creating a more unfavorable environment in which to rear children or by creating a less wholesome community, and (3) will not be contrary to the public interest, so that the spirit of the ordinance shall be observed, public safety secured, and substantial justice done. The common council may impose other conditions and limitations to carry out such purposes.”

Two bars are now in operation on the south side of East Eight Mile between Hayes and Brooks. Plaintiff contends on appeal that since the two bars existing now are not within 1,000 feet of each other, her bar would be a permissive use not requiring waiver. The contention is contradicted by the plain words of the ordinance. The ordinance requires that the measurement of the distance start with the proposed location and radiate out 1,000 feet.

The boundaries of the site of plaintiff’s proposed bar are within 1,000 feet of two existing bars. Therefore, by the terms of the ordinance, a waiver by the common council of the location limitation is necessary if plaintiff is to be authorized to use her leased premises as she proposes.

Plaintiff petitioned • the Detroit common council for waiver October 10, 1966. The petition was referred to the city plan commission. At a staff hearing held on October 24, 1966, after due notice mailed October 14, counsel for the plaintiff made her case. The staff, after testimony taken in favor of and in opposition to plaintiff’s proposed establishment of a bar, recommended denial of plaintiff’s request to the city plan commission at its regular meeting October 25, 1966. The commission, after hearing the staff’s presentation and considering the request, carried a motion that “the establishment of this use at this location would be injurious to' the contiguous or surrounding neighborhood, conducive to the spread of blight, and contrary to the public interest; and further, that the request of Claire S. Mazo for approval to permit the establishment of a bar at 15270 East Eight Mile between Hayes' and Brooks be denied.”

The Detroit common council, in regular session November 1, 1966, followed the recommendation of the city plan commission and denied plaintiff’s petition. December 6, 1966, the common council voted again, 7-0, against waiver, and on January 24, 1967, the council denied a petition for rehearing.

The trial court gave judgment in favor of plaintiff, for it concluded that it would be inequitable to deny her a waiver since she had incurred detriment in reliance on approvals given by city officers; and the trial court concluded further that the Detroit common council, in denying plaintiff’s petition, "had abused its discretion.

We are sympathetic with the hardship plaintiff has suffered and may yet suffer, but we must conclude that the trial court erred.

Plaintiff claims estoppel of the city to enforce its ordinance, since she made expenditures in reliance on erroneous approval she received from the city’s officers. But the authority in this State does not support her claim, for nonestoppel of municipalities in the enforcement of zoning ordinances is the rule in Michigan. Plaintiff advances one case in which the Supreme Court allowed estoppel against the enforcement of a zoning ordinance, Township of Pittsfield v. Malcolm (1965), 375 Mich 135. But exceptional circumstances not present here formed the basis for the equitable estoppel granted against the township of Pittsfield. The township had been guilty .of laches in standing by during the construction of animal kennels and in waiting 10 months after occupancy before challenging the owner’s right to continue using the building as a kennel. Important to the Court’s decision in Township of Pittsfield was the finding that the building in question was of doubtful utility other than as an animal kennel. Miss Mazo testified that she spent about $6,500 for rent, renovation and utilities. She makes no allegation that her expenditures have rendered her premises useless except as a bar.

Furthermore, the Court, in Township of Pitts-field, in granting an exception under the circumstances, expressly affirmed the nonestoppel rule of Fass v. City of Highland Park (1949), 326 Mich 19. The city of Highland Park had for three years granted a property owner annual licenses to sell live poultry in his retail store, and then it refused to grant an annual renewal because the use was in violation of the city ordinance. The Supreme Court, after reviewing the authority in this State and in other jurisdictions, concluded that the municipality was not precluded from enforcing a zoning regulation because its officer had exceeded his authority by issuing a license contravening the terms of the ordinance, even though the license holder had proceeded in reliance to his detriment. In Fass, Plaintiffs had obtained a building permit from the city engineer and had constructed and equipped a store in reliance on the opinion of the board of zoning-appeals that the sale of live poultry was a permissible use. They alleged loss of property rights if not allowed to continue the previously authorized use, but the Court decided that their acts “being-unauthorized and in express contravention of ordinance provisions of the city, plaintiffs acquired no vested right to use their property for a purpose forbidden by law.” Fass v. City of Highland Park, supra, p 31.

The circumstances arguing for estoppel in Fass were far stronger than those plaintiff brings to us. The Supreme Court has followed Fass in recent cases, Jourden v. Wyoming Township (1960), 358 Mich 496, and DeGaynor v. Dickinson County Memorial Hospital Board of Trustees (1961), 363 Mich 428, and we must follow likewise.

Furthermore, plaintiff’s reliance, even if in good faith, was not justifiable. Handwritten on the form stamped by the department of buildings that plaintiff claims as the basis for estoppel was the notation: “Approved subject to occupancy permit and parking regulation.” The section of the Detroit zoning ordinance covering this provision is section 18.3 which provides: “No certificate of occupancy pursuant to the building code * * * shall be issued unless the building, structure, or part thereof, and the use of the land, covered by such certificate, conforms in all respects with the provisions of this ordinance.”

Similarly, the August 17, 1966 letter of approval to the liquor control commission from the Detroit police department stated that its approval was “subject to compliance with the ordinance of the city.” Thus, plaintiff had actual notice that there were additional requirements to be complied with before she could consider that she had a green light to go ahead and incur expense in preparation for opening a bar. The enforcement of zoning ordinances would be unraveled if courts were to allow premature expenditures to force the hand of plan commissions and city councils.

Plaintiff must be charged with at least constructive knowledge of the zoning ordinance provision requiring a waiver by the common council. Neither the department of buildings nor the police department could exercise the authority vested in the common council. The language in Building Commission of the City of Detroit v. Kunin (1914), 181 Mich 604, 612, quoted by the Court in Fass, supra, p 27, states the principle applicable here.

“ ‘They [the defendants] procured a permit which had no legal status, since no such authorization is warranted by the ordinance. The defendants must be held to have had notice of this. All persons dealing with municipalities and their agents act with constructive, if not actual, knowledge of the limitations upon the delegated powers of cities and their instrumentalities. The defendants took nothing with their permit. It was an extralegal instrument. Of itself, it was without efficacy.’ ”

Plaintiff argued and the trial court emphasized that, since there previously had been three bars operating in this same block, the situation would be no worse if plaintiff were to be granted her petition. But the argument misses the mark. The previous nonconforming use, validly existing at 15232 East Eight Mile, does not confer a right on plaintiff to establish a new nonconforming use at 15270 East Eight Mile. Zoning regulations may confer a right to a given use of property; they do not confer a right to transfer a use from one location to another. Section 3.3 of the Detroit zoning ordinance limits nonconforming uses as follows:

“The following regulations shall apply to all nonconforming buildings and structures or parts thereof, and uses existing at the effective date of this ordinance.
“(a) any such nonconforming building or structure may be continued and maintained provided there is no physical change other than necessary maintenance and repair in such building or structure.”

Tbe previous nonconforming use existed before tbe effective date of section 10-ID, March 1, 1962. That plaintiff was unable to negotiate a lease at that location does not confer on her a right to establish a new nonconforming use at a different location now, after the effective date of the ordinance.

Section 10-ID is a “skid row” ordinance whose object is to prevent neighborhood deterioration and whose validity no one contests. Mr. Elmer Mueller, head city planner, testified that it was the city’s object to minimize the problems created by the congestion of liquor bars in a neighborhood. The city may legitimately use its ordinance to improve the condition of a neighborhood by refusing to authorize new nonconforming uses. Austin v. Older (1938), 283 Mich 667. This decision lay within the discretion of the common council.

For plaintiff to have obtained a valid approval, it was essential by the terms of the ordinance, section 10-ID quoted supra, that she obtain a waiver from the common council.

We cannot agree with the trial court that the common council abused its discretion. The council is vested with authority to grant waiver after recommendation by the city plan commission and upon making a specified finding. In voting to deny plaintiff’s petition, the council followed the recommendation of the city plan commission and found that the conditions that would justify waiver were not satisfied. The plan commission’s finding was made after a graphic presentation by its staff, after plaintiff’s counsel argued her case, and after testimony was taken in favor of and in opposition to plaintiff’s proposed establishment of a bar. That a majority of those in the neighborhood surveyed in April, 1966 by the Detroit police department approved of the bar’s establishment was not conclusive; that majority could not bind the plan commission or the city council. The findings were “supported by competent, material and substantial evidence on the whole record.” Const 1963, art 6, § 28. The constitutional requirement was satisfied.

The trial judge inspected the premises and the surrounding area, and he formed the opinion that the conditions that would support a waiver under the ordinance were satisfied in this case. However, absent a proper finding of an abuse of discretion, the trial court cannot override the decision of the common council. Brae Burn, Inc., v. City of Bloomfield Hills (1957), 350 Mich 425; Indian Village Manor Company v. City of Detroit (1967), 5 Mich App 679.

The judgment of the circuit court is reversed. No costs are awarded since a public question is involved.

J. H. Gtllis and T. Gr. Kavanagh, JJ., concurred.,


author: Per Curiam.

text:
    PEOPLE v. DUMAS.
    Criminal Law — Assault with Intent to Rape — Evidence.
    Conviction of assault with intent to rape is affirmed on motion by the people to dismiss the appeal or to affirm the eonvietion, where a review of defendant’s brief, the motion to dismiss or affirm, and the record diselose sufficient evidence to sustain the conviction, if such testimony were believed by the trial court (CLS 1961, § 750.85).
    .References for Points in Headnotes
    44 Am Jur, Rape §§ 21-25.
    Appeal from Recorder’s Court of Detroit; Swain-son (John B.), J., presiding.
    Submitted Division 1 December 26, 1967, at Detroit.
    (Docket No. 2,680.)
    Decided February 26, 1968.
    Joseph Nathaniel Dumas was convicted of assault with intent to rape. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Gahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Barbara K. Hackett, Assistant Prosecuting Attorney, for the people.

      Edtvard M. Babcock, for defendant.
   Per Curiam.

Defendant Joseph Nathaniel Dumas was charged with having committed the act of assault with intent to rape in violation of CLS 1961, § 750.85 (Stat Ann 1962 Rev § 28.280), in 1966 in the city of Detroit. He was tried by the court without a jury on June 1, 1966, and found guilty.

The appeal tests the sufficiency of the evidence for a finding of guilty beyond a reasonable doubt. The people file a motion to dismiss the appeal or to affirm the conviction.

A review of defendant’s brief, the motion to dismiss or affirm, and the record disclose sufficient evidence to sustain the conviction, if such testimony were believed by the trial court.

Affirmed.

Lesinski, C. J., and J. H. Gillis and Levin, JJ., concurred.


author: Quinn, J.

text:
    EDWARDS v. FLINT CITY CLERK.
    1. Elections — Appointment of Assistants by Clerks- — Remunera- ■ tion.
    Appointment of assistants by eity clerks to carry out the general provisions of the election law is authorized by statute, and they are not required to be paid (CLS 1961, § 168.29, as amended by PA 1967, No 186).
    2. Same — Registration—Interpretation.
    The object of registration provisions of the election law is to secure maximum registration possible and thereby to accomplish maximum participation in the electoral process (CLS 1961, § 168.497, as amended by PA 1967, No 188).
    3. Same — Electors—House-to-House Registration.
    House-to-house registration of electors held, not illegal, absent a specific statutory prohibition (CLS 1961, § 168.497, as amended by PA 1967, No 188).
    4. Statutes — Election Law — Construction.
    Pertinent provisions of the election act must be considered together to the end that the general plan and purpose of the law-making body be ascertained.
    5. Elections — Registration—Statute.
    Statutory language that no application for registration shall be executed at any place other than the office of the township, eity, or village clerk, or a public place or places designated by him held, to apply during the mandatory days and hours when the clerk must be available at his office or other specified public place to accept registrations as required by statute, and not otherwise (CLS 1961, §§ 168.497, 168.498, as amended by PA 1967, No 188).
    References for Points in Headnotes
    [1] 25 Am Jur 2d, Elections §§ 39, 44.
    [2] 25 Am Jur 2d, Elections § 95.
    [3] 25 Am Jur 2d, Elections § 105.
    [4] 25 Am Jur 2d, Elections §§ 96, 97.
    [5] 25 Am Jur 2d, Elections §§ 97, 105.
    [6] 26 Am Jur 2d, Elections § 369.
    [7] 5 Am Jur 2d, Appeal and Error § 1009.

      6. Same — Voter Qualifications — Proper Method to Challenge.
    The election law affords the means of testing the qualifications of an elector both before and at elections, and it is doubtful that an aetion to enjoin a city clerk from conducting door-to-door registration of electors should be recognized by the courts (CLS 1961, §§ 168.512, 168.520, 168.521, 168.727-168.729).
    7. Costs — Public Question — Door-to-Door Registration of Electors.
    No costs are allowed on appeal from a trial eourt judgment enjoining a city clerk from conducting door-to-door registration of electors, a public question being involved (CLS 1961, § 168.29, as amended by PA 1967, No 186; § § 168.512, 168.520, 168.521, ' 168.727-168.729).
    Appeal from Genesee; Papp (Elza EL), J.
    Submitted Division 2 January 24, 1968, at Lansing.
    (Docket No. 4,945.)
    Decided January 25, 1968.
    Opinion filed February 26, 1968.
    Leave to appeal denied April 16,1968.
    See 380 Micb 765.
    Complaint by F. Robert Edwards against Lloyd Hendon, Clerk of the City of Flint; and Raymond Stedron, Carl E. Mason, Floyd McCree,- William Polk, James Murphy, Harry Cull, Donald Cronin, Alton Smith and James Mitchell, Commissioners of the City of Flint, for an injunction to prevent door-to-door registration of electors. Judgment for plain-' tiff. Defendants appeal. Attorney General intervened.
    Reversed.

      Eugene E. Sordyl, for plaintiff.

      Charles W. White, for defendant Murphy.

      Charles A. Forrest, Jr., for other defendants.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman, Assistant Attorney General, for intervenor.
   Quinn, J.

By this action, plaintiff challenges the right of defendant Hendon (Flint city clerk) to conduct a door-to-door registration of electors in Flint by the use of a group of volunteer assistants. On January 15, 1968, at the conclusion of a hearing on an order to show cause issued on the filing of plaintiff’s complaint, the trial court by oral opinion held as follows:

1. The appointment of volunteers as assistant clerks is illegal and any registrations taken by them are null and void.

2. Door-to-door registration is illegal.

3. Such registration is enjoined permanently and the clerk is ordered not to process any door-to-door registrations already taken.

■ The next day, defendants filed application for emergency leave to appeal to this Court and for stay of proceedings below. The emergency is apparent from the fact that the period of registration for a special election to be held February 20, 1968, closes January 19,1968. Leave and stay were granted by this Court’s order of January 17, 1968, which also set the matter for oral argument at Flint on January 24, 1968. After argument and on January 25,1968, by order before opinion, this Court reversed the trial court. The reasons for such action could not be expressed adequately in the order and they are as follows:

CLS 1961, § 168.29, as amended by PA 1967, No 186 (Stat Ann 1968 Cum Supp § 6.1029) authorizes appointment of assistant clerks and it does not require that they shall be paid.

On the strength of the following language found in CLS 1961, § 168.497, as amended by PA 1963 (2d Ex Sess), No 10, and PA 1967, No 188 (Stat Ann 1968 Cum Supp § 6.1497):

“Except as provided in section 504 no application for registration shall be executed at any place other than the office of the township, city or village clerk or a public place or places designated by him for receiving registrations pursuant to the provisions of this act, but such clerk may in his discretion receive such application wherever he may be.”

the trial court found house-to-house registration illegal. If such a result is possible, a point discussed later in this opinion, it is only possible by the most narrow construction of the statute. Such construction is contrary to the long established policy of this state. In Attorney General, ex rel. Conely, v. Common Council of Detroit (1889), 78 Mich 545, 559, 560, the Supreme Court said:

“The object of a registry law, or of any law to preserve the purity of the ballot box, and to guard against abuses of the elective franchise, is not to prevent any qualified elector from voting, or unnecessarily to hinder or impair his privilege. It is for •the purpose of preventing fraudulent voting. In order to prevent fraud at the ballot box, it is proper and legal that all needful rules and regulations be had to that end; but it is not necessary that such rules and regulations shall be so unreasonable and restrictive as to exclude a large number of legal voters from exercising their franchise. Nor can the legislature, in attempting, ostensibly, to prevent fraud, disfranchise legal voters without their own fault or negligence. The power of the legislature in such cases is limited to laws reg-ulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse. The right to vote must not be impaired by regulation.”

As recently as 1958, this policy was reiterated in St. Joseph Township v. Municipal Finance Commission, 351 Mich 524, 530, as follows:

“The provisions referred to in sections 497 and 498 are obviously designed to secure the maximum registration possible and to thereby accomplish maximum popular participation in the electoral process.” (The section 497 referred to is Stat Ann 1968 Cum Supp § 6.1497, supra.)

This established policy leads us to the conclusion that absent a specific statutory prohibition, house-to-house registration of electors is not illegal.

Assuming arguendo that narrow construction is proper, the result reached by the trial judge is untenable. It is requisite that pertinent provisions of the act be considered together to the end that the general plan and purpose of the law-making body may be ascertained. Melia v. Employment Security Commission (1956), 346 Mich 544. When so considered, the language “no application for registration shall be executed at any place other than the office of the township, city or village clerk or a public place or places designated by him” of CLS 1961, § 168.497, as last amended by PA 1967, No 188 (Stat Ann 1968 Cum Supp § 6.1497), supra, applies during the mandatory days and hours when the clerk must be available at his office or other specified public place to accept registrations as required by CLS 1961, § 168.498, as last amended by PA 1967, No 188 (Stat Ann 1968 Cum Supp § 6.1498) and not otherwise.

Although the question was not raised below nor on appeal and a decision on it is unnecessary in view of what has already been said, it seems appropriate to point out that there is serious doubt in the mind of this Court that the action here involved is an action that is, or should be, recognized by the courts of this State. Doubt that it is an action recognized by Michigan courts arises from Attorney General v. Ingham Circuit Judge (1957), 347 Mich 579, and Finlayson v. Township of West Bloomfield (1948), 320 Mich 350. Doubt that it should be an action recognized by our courts arises from the fact that the basic inquiry on the issue of a person’s right to vote is whether that person possesses the qualifications to vote, and our statutes afford the means, of testing these qualifications both before and at election. See CLS 1961, § 168.512 (Stat Ann 1968 Cum Supp § 6-.1512), CLS 1961, §168.520 (Stat Ann 1956 Rev § 6.1520), CLS 1961, § 168.521 (Stat Ann 1968 Cum Supp §6.1521) and CLS 1961, §§ 168.727-168.729 (Stat Ann 1956 Rev §§ 6.1727-6.1729). In addition, see In re Penney (1935), 246 App Div 562 (282 NYS 961), and In re Registry of Electors (1933), 239 App Div 135 (267 NYS 744).

Reversed in all respects, but without costs, a public question being involved.

T. G. Kavanagh, P. «L, and McGregor, J., concurred.

       CLS 1961, § 168.1 et seq., as amended (Stat Ann 1956 Rev and Stat Ann 1968 Cum Supp § 6.1001 et seq.).


author: Lesinski, C. J. J. H. Gtillis, J.

text:
    NICPON v. NICPON.
    Opinion of the Court.
    1. Appeal and Error — Questions Reviewable — Jurisdiction of Court of Appeals.
    Review by the Court of Appeals of non-compliance with a mandatory court rule that trial court in nonjury ease make special findings of faet and enter an appropriate judgment held, proper, although issue was neither raised nor briefed by the parties, since it is a fundamental matter affecting the court’s jurisdiction and reviewing function (GCR 1963, 517.1).
    2. Judges — Special Findings — Conclusions of Law.
    Trial judge must make special findings of faet and state his conclusions of law thereon in all actions tried without a jury or with an advisory jury (GCR 1963, 517.1).
    3. Appeal and Error — Reviewing Court — Findings of Fact.
    Reviewing court must aeeept trial court’s findings of facts unless it finds them clearly erroneous (GCR 1963, 517.1).
    á. Same — Findings of Fact — Review.
    Primary function of an appellate court in regard to faet finding is review of trial court’s record and determination whether that record supports the trial court’s findings.
    5. Trial — Non jury Cases — Findings of Fact.
    The duty of the trial judge to make findings of fact in a non-jury ease is absolute and not dependent on a request by the parties (GCR 1963, 517.1).
    References for Points in Headnotes
    [1, 3-5] 5 Am Jur 2d, Appeal and Error § 839 et seq.

    [2, 6] 53 Am Jur, Trial § 1131 et seq.

    [7] 5 Am Jur 2d, Appeal and Error § 1014.
    [8] 5 Am Jur 2d, Appeal and Error §§ 703, 822.
    [9] 24 Am Jur 2d, Divorce and Separation § 783 et seq.

    [10] 24 Am Jur 2d, Divorce and Separation § 794.
    Propriety of court conducting private interview with child in determining custody. 99 ALR2d 954.

      6. Judgment — Divorce—Noncompliance With Court Rules.
    Judgment of absolute divorce to defendant liusband, pursuant to counterclaim, is reversed and ease remanded for further proceedings and compliance with court rule where the record reveals that the trial court failed to make any special findings of fact, did not state its conclusions of law thereon, and did not direct entry of an appropriate judgment as required by the rule (GCR 1963, 517.1).
    7. Costs — Appeal and Error — Neither Party Prevailing in Pull.
    No costs are allowed on appeal of judgment for absolute divorce where cause is reversed for further proceedings by the trial court, neither party having prevailed in full.
    Dissenting Opinion.
    Gillis, J.
    8. Appeal and Error — Equity Cases — De Novo Review. The Court of Appeals reviews equity cases de novo.
    9. Divorce — Judgment—Evidence—De Novo Review.

      Judgment of absolute divorce on counterclaim of defendant husband should be affirmed where de novo review of the record shows that trial judge properly granted defendant such divorce and custody of minor children of the parties, and that property division made by the court was just and equitable, considering fact that defendant husband had burden of raising minor children.

    10. Same — Child Custody — Trial Court — Interviewing Children.

      Claim by plaintiff wife that the trial court committed reversible error in trial of divorce action by personally spealcing to the minor children of the parties in chambers without malcing a record and without offering plaintiff or her attorney the opportunity to be present held, without merit, since in disputed custody cases sound practice dictates that the judge charged with decision see and talle informally with the children, preferably in chambers, when they are of discretionary age, where they will not be influenced by the presence of one or more of their parents or a parent’s advocate.

    Appeal from Wayne, Swainson (John B.), J.
    Submitted Division 1 March 8, 1967, at Detroit.
    (Docket No. 2,544.)
    Decided March 18, 1968,

      Complaint by Berneta K. Nicpon against Joseph Gr. Nicpon for divorce. Counterclaim for divorce by defendant. Judgment for defendant. Plaintiff appeals.
    Reversed and remanded for further proceedings.

      Brennan, Walt & Guth, for plaintiff.

      Craig & Heidt, for defendant.
   Lesinski, C. J.

Plaintiff wife appeals the granting of a judgment of divorce to defendant husband and the award of custody of their minor children to defendant, as well as the property award incorporated in the judgment.

On April 28, 1964, plaintiff filed her complaint for absolute divorce which charged extreme and repeated cruelty and sought custody and support of their minor children, and an equitable division of property. Defendant answered. The matter was referred to the friend of the court whose report was filed on October 21,1965. On December 3,1965, defendant filed his counterclaim which plaintiff answered on January 28, 1966. The final report of the friend of the court was filed on December 17, 1965. Trial of the cause took place on May 26,1966. The formal judgment of divorce appealed from here was entered on June 17, 1966.

A review of the record on appeal reveals that the trial court did not make any special findings of fact; it did not separately" state its conclusions of law thereon; nor did it direct the entry of the appropriate judgment. Further, we find no opinion or memorandum decision in this cause.

The transcript reveals that after the parties had presented their cases, the court made the following remark just prior to adjournment: “Let’s adjourn this case until 2 o’clock this afternoon, at which time I will see the children.”

The judgment of divorce entered on June 17,1966, indicates that the trial court at some point spoke personally to the minor children of the parties in chambers.

A motion for new trial or to alter or annul the judgment was filed and subsequently denied. This motion did not raise the issue of the trial court’s failure to provide the matter indicated above as missing.

The plaintiff raises four issues on appeal which allege that the court erred in granting a judgment of divorce to the defendant; that it erred in its custody award; that it erred in speaking to the minor children in chambers without making a record and without offering plaintiff or her counsel an opportunity to be present; and that the property award was unjust, inequitable and unsupported by the evidence. In view of our conclusions, it is not necessary for us to treat the issues raised.

While this Court ordinarily will not review issues neither raised nor briefed by the parties, it is not obliged to ignore fundamental matters, such as those related to its jurisdiction and reviewing function. To ignore noncompliance with a mandatory court rule directly affecting our reviewing function, simply because the parties do not alert us to such noncompliance, would be to disregard a fundamental matter.

The requirements of GCE* 1963, 517.1 substantially affect the process of review. In all actions tried either without a jury or with an advisory jury, including an action for divorce, the rulé requires the trial judge to make special findings of fact and to state separately his conclusions of law thereon. The same rule requires the reviewing court to accept the trial court’s findings of fact, unless it holds them clearly erroneous. This places a limitation upon the reviewing power of appellate courts.

In this case we do not have even minimum compliance with the rule. Noncompliance is, perhaps, understandable, for it was not the practice before GrCR 1963, 517.1 to make such findings in divorce actions. Theretofore, in actions of an equitable nature, the Supreme Court searched the record of the trial court proceedings and reached its own “independent conclusions.” See Jaikins v. Jaikins (1963), 370 Mich 488.

Compliance with the new rule concerning findings of fact will both expedite the appellate process and make unnecessary our attempt to • pass upon credibility and find facts from lifeless printed words. In the search for truth, the cold record is an inadequate substitute for the opportunity to hear a witness and observe his demeanor.

An appellate court’s primary function in regard to fact finding is review of the trial court’s record and determination whether that record supports the trial court’s findings. It is not the function of an appellate court to decide disputed questions of fact in the first instance and then choose between affirmance or reversal by testing its factual conclusion against that which the trial court might have or, if the trial judge’s reasoning at the time of judgment were identical with that of the appellate court at the time of review, must have reached for it to issue the judgment it did.

Clear and complete findings by the trial judge are essential to enable us properly to exercise and not exceed our powers of review.

“We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” Mr. Justice Cardozo, for the Court, in United States v. Chicago, M. St. P. & P. R. Co. (1935), 294 US 499, 511 (55 S Ct 462, 467, 79 L ed 1023, 1032).

The parties in the trial court did not request the trial judge to make findings of fact under the rule. However, the duty to make such findings of fact is not dependent upon a request, but is mandatory upon the trial judge.

The failure of the trial court to comply with the mandates of CCR 1963, 517.1, requires us to set aside the judgment of divorce and remand the cause to the trial court for further proceedings and compliance with the rule.

Reversed and remanded. No costs are awarded as neither party fully prevailed.

Levin, J., concurred with Lesinski, C. J.

J. H. Gtillis, J.

(dissenting). The majority opinion bases its reversal on the failure of the trial coprt to comply with GrCR 1963, 517.1, an issue not raised on appeal and consequently not briefed by the parties.

Because equity cases are still reviewed de novo, Osius v. Dingell (1965), 375 Mich 605, 610, this Court is not powerless to render decision because of the trial court’s failure to comply with GCR 1963, 517.1. This is not a case with involved questions of law and fact which might make special findings of fact and conclusions of law absolutely necessary to appellate review. To the extent plaintiff felt prejudiced by the absence of special findings, she could have made a point of it in the trial court and here. To send this case back to the trial court for further proceedings and a probable second appeal to this Court, with the attendant legal expenses, on a point not suggested by the plaintiff unduly penalizes both parties. "While compliance with GCR 1963, 517.1, would have made our de novo review of this record easier, noncompliance with the rule should not justify our refusal to decide the issues squarely presented by this record and the rulings of the trial judge.

A recounting of the events which precipitated the dissolution of this 20-year marriage would add nothing to the jurisprudence of this State. It is sufficient to say that the testimony showed ample grounds for granting defendant a divorce on the grounds of extreme cruelty as set forth in his counterclaim. Based on my examination of the record in this case and making a de novo review of the facts, I would conclude that the trial court properly granted a judgment of divorce to the defendant on his counterclaim. The division of the property is just and equitable considering the fact that the burden of raising the minor children of the parties rested on the defendant.

• I feel constrained to comment on appellant’s-allegation that the trial court erred in speaking personally to the minor children of the parties in chambers without making a record of same and without offering plaintiff or her attorney the opportunity to be present. Both the plaintiff and the defendant were represented by able counsel vigorously attempting to protect the interests of their clients. No attorney was present to represent specifically the interest of the minor children. The court quite properly conducted a private informal interview with the children in an atmosphere calculated to embarrass them least and to remove them from the arena where they might be influenced by the presence of one or both of their parents or a parent’s advocate.; As stated in Bowler v. Bowler (1958), 351 Mich 398, at p 406:

“In disputed custody cases, we believe that sound practice dictates that the judge charged with decision see and talk informally with the child, preferably in chambers, when it is of discretionary age.”

Summarizing my de novo review of the record in this case, I would answer in the negative each of the four issues presented by appellant for our determination and affirm the judgment of the trial court.

       At the time of the trial, the children’s ages were: 17 years, 13 years, and 11 years. At the time of oral argument before this Court, the eldest child had reached 18 years and the youngest 12 years.

       “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 eourt makes brief, definite, and pertinent findings and conclusions upon the contested matters 'without over elaboration of detail or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein. The clerk shall notify the attorneys for both parties of the findings of the court. Findings of fact and conclusions of law are unnecessary on decisions of motions except as provided in subrule 504.2. The findings of a circuit eourt commissioner, to the extent that the eourt adopts them, shall be considered as findings of the eourt. Bequests for findings are not neeessary for purposes of review. No exception need be taken to any finding or decision. Findings of faet shall not be set aside unless clearly erroneous. In the application of this principle regard shaU be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”

       GOB 1963, 11,1,

       Cf. Dean v. Dean (1955), 343 Mich 458.


author: Levin, J.

text:
    BANISH v. CITY OF HAMTRAMCK.
    1. Municipal Corporations — Charter—Ordinances.
    The charter of a city is its fundamental law, and. all ordinances in conflict with it are void upon the principle that a statute which contravenes a constitution must fall.
    2. Same — Charter—Pat.
    Attempted distinction by defendant city in ordinances between increases in “regular salary”, to whieh retirees are entitled, and “any other pay”, to whieh retirees would not be entitled, is foreclosed by city’s charter whieh speaks simply in terms of “pay” (Hamtramek City Charter, chap 13, § 4).
    3. Same — Charter—Words and Phrases.
    The term “pay” as used in the charter clause pertaining to increases of pay of retirees of “1/2 of the pay” for ranks changed is the regular compensation currently paid to those of the rank held by the retiree at the time of his retirement (Hamtramek City Charter, chap 13, § 4).
    4. Same — Compensation—Civil Servants.
    “In service” pay and “hazard risk” pay held, regular compensation currently paid to policemen and firemen of city when computing retirement pay under city charter (Hamtramek City Charter, chap 13, § 4).
    References for Points in Headnotes
    [1] 37 Am Jur, Municipal Corporations § 155 et seq.

    [2, 3] 15 Am Jur 2d, Civil Service § 29; 37 Am Jur, Municipal Corporations § 255 et seq.

    [4, 6-10] 40 Am Jur, Pensions §§ 18, 19.
    [5] 15 Am Jur 2d, Civil Service § 31.
    [11,13-15,19-21] 22 Am Jur 2d, Damages § 179 et seq..

    [12] 50 Am Jur, Statutes § 475 et seq.

    [16-18] 37 Am Jur, Municipal Corporations § 256.
    [22] 5 Am Jur 2d, Appeal and Error § 1009.

      5. Same — Civil Servants — Holiday Pay.
    Holiday pay for eity policemen and firemen, equal to 8 times the maximum daily rate of pay, and payable 1/8 on the first payday after eaeh of 8 designated holidays, held, part of regular compensation when computing retiree’s pay under city charter (Hamtramck City Charter, chap 13, § 4).
    6. Same — Ordinance—Civil Servants — Longevity Pay.
    Longevity pay, defined by ordinance as not part of base or reward based on mere length of service or seniority but rather incentive pay designed to retain and reward firemen and police officers for future service, held, part of pay of policemen and firemen to be considered in computing retirement benefits (Hamtramck City Charter, chap 13, § 4).
    7. Same — Policemen and Firemen — Compensation—Allowance for Uniforms.
    Allowance for uniforms for policemen and firemen, which saves an active service employee a corresponding amount, and in a sense increases his pay, held, nothing more than a reimbursement for an actual out-of-poeket expense incurred in the performance of duty, and hence not pay to be used in computing retirement benefits (Hamtramck City Charter, ehap 13, § 4).
    8. Same — Contributions for Pensions — Retirement Pay.
    Fact that city did not deduct a percentage as contribution for pensions from certain elements of pay of its active employees, sueh as in service, hazard risk, and longevity, the same as it made deductions from regular salary would not prevent such specified elements from being considered as compensation to half of which retirees would be entitled pursuant to eity charter (Hamtramck City Charter, chap 13, § 4).
    9. ' Same — Longevity Pay — Retirement Pay.
    Longevity pay to eity policemen and firemen, regularly paid ' qualified employees under the program, constituted pay which would be includible in computing compensation payable to retirees at 1/2 of compensation for rank at time of retirement (Hamtramck City Charter, ehap 13, § 4).
    10. Same — Retirement—Laches.
    Laches on part of city employee retirees held, to have been properly rejected by trial judge as a defense in their proceeding to compel payment of 1/2 of increases paid to active employees of equal rank in eity employment as required by city charter (Hamtramck City Charter, ehap 13, § 4).

      11. Interest — Date of Filing Complaint.
    Interest on any money recovered in a eivil action shall be calculated from the date of filing the complaint (CLS 1961, § 600.6013, as amended by PA 1965, No 240).
    12. Same — -Amendment of Statute — Prospective Operation.
    Amendment to statute by which interest on judgment is allowed from date of filing complaint does not apply to complaints filed prior to amendment’s effective date, although the judgment itself may be entered subsequent to the effective date (CLS 1961, § 600.6013, as amended by PA 1965, No 240).
    13. Damages — -Interest.
    Disallowance of interest on a damage award to avoid excessive compensation is appropriate in cases where the award of damages is essentially discretionary, ungoverned by any standard other than overall reasonableness, not because the damages are unliquidated or otherwise uncertain, but because to add interest would be redundant.
    14. Same — Interest—Full Compensation.
    Interest should be allowed as part of damages where necessary in order to accomplish full compensation.
    15. Interest — Punishment—Loss of Use.
    Interest is not allowed as a punishment but is allowed as a legal compensation for lost use.
    16. Same — Pay—Retiree.
    Allowance of interest on claim of retirees from date of demand giving the class of retired policemen, firemen, and members of police signal and fire alarm systems 50% of all pay increases, including “in service” pay increase hazard risk pay, 50% of paid holidays, and longevity held, proper, since not to allow interest would deny full compensation to retirees as provided in city charter (Hamtramek City Charter, chap 13, § 4).
    17. Same — Pay Increases — Delay in Payment.
    Delay in payment to retirees of increases in pay to which they were entitled under city charter provided the eity with the use of plaintiffs’ money and denied plaintiffs the use of the funds, and the addition of interest as part of the damage claim is essential to avoid inadequate compensation (Hamtramek City Charter, chap 13, § 4).

      18. Same — Municipal Corporations.
    Interest on a debt may be recovered from a municipal corporation.
    19. Same — Demand—Start Running of Interest.
    A demand for payment must be made to proper authority to start the running of interest on a debt, unless demand would be futile and then it is not required.
    20. Same — Demand.
    Petition filed with city council by retired polieemen, firemen, and members of police signal and fire alarm systems seeking pay increases was a demand sufficient to start interest running on that day on payments to which they were entitled under city charter (Hamtramek City Charter, chap 13, § 4).
    21. Same — Demand—Rejection.
    Members of class who did not join in petition for payment of arrearages in retirement payments were entitled to interest from date city council rejected petition by claimant retirees (Ham. tramck City Charter, ehap 13, § 4).
    22. Costs — Retirees—Pay Increases — Public Question.
    No costs are allowed where retired policemen, firemen and retired members of police signal and fire alarm systems of a city seek writ of mandamus requiring payment of increased pension benefits, a public question being involved (Hamtramek City Charter, ehap 13, § 4).
    Appeal from Wayne; Burdick (Benjamin D.), J.
    Submitted Division 1 June 7, 1967, at Detroit.
    (Docket No. 2,658.)
    Decided March 18, 1968.
    Rehearing denied May 15, 1968.
    Leave to appeal denied September 30, 1968.
    See 381 Mich 779.
    Complaint in class action by Edward Banish and 43 others against the City of Hamtramek, its mayor, treasurer, clerk, controller, and common council, for a writ of mandamus requiring payment of increased pension benefits.
    Writ granted in part.
    Defendants appeal. Plaintiffs cross-appeal.
    Affirmed in part and reversed in part.

      Con. S. Gryczka (Theodore R. Robbins, of counsel), for plaintiff.

      Charles W. Kotulski, City Attorney, Stanley J. Draganski, Assistant City Attorney, and Edmund E. Torcellini, Assistant City Attorney, for defendant.
   Levin, J.

Plaintiffs are retired policemen and firemen and retired members of tbe police signal and fire alarm systems of tbe city of Hamtramck. Under tbe provisions of tbe city charter, they are entitled to receive a pension at the rate of one-half the pay of the rank in which they served at the time of retirement. The charter provides that in the event of any change at any time after retirement “in • such rate of pay” the pension thereafter will be “at the rate of 1/2 the pay for said rank so changed.”

The charter provision was adopted in 1938, and from the time of its adoption through the fiscal year preceding 1959-1960 pensioners received their 50% share of adjustments whenever pay changes were approved for persons on active duty. For the fiscal year 1959-1960 the common council adopted the recommendation of its budget board increasing the pay of its class B employees to correspond to that paid in the city of Detroit, but providing that retirees shall not receive one-half of the increment. Such proviso was expressed as follows:

“that the basic pay of the Class B employees for all intents and purposes shall be the same as was prevailing in the 1958-1959 fiscal year and that any amounts paid over and above such basic pay shall be construed as payments made only while in active service for the city of Hamtramck and not constituting part of any salary upon which pension payments are to be computed and paid in the future.” (Emphasis added.)

The parties refer to the increment over basic pay, in 1959-1960 and later years paid only to those in active service, as “in service pay.”

The plaintiffs, and the other members of the class in whose behalf this suit was instituted, are all class B employees.

The separate designation for “in service pay” set forth for the first time in the 1959-1960 budget also appears in subsequent budgets. In the 1964-1965 budget, “in service pay” was supplemented by “hazard risk pay,” a designation continued in the 1965-1966 budget. During these years employees in active service received an annual clothing or uniform allowance, annual holiday pay and annual longevity pay benefits not reflected in the pensions of retired employees.

The retirees made informal efforts to obtain from the city payment of 50% of these amounts. When such efforts failed a petition demanding payment was filed with the common council on August 24, 1964. The petition was rejected on September 29, 1964.

Plaintiffs’ complaint was filed March 1, 1965, and sought a writ of mandamus requiring payment of increased pension benefits. Defendants answered that the charter provision means “one-half of regular salary and not any other pay”, that the common council of the city of Hamtramck might authorize compensation over and above the “regular salary’" payable only to active members of the police and fire departments and signal and alarm systems, and that in service, hazard risk, holiday and longevity pay and clothing and uniform allowances were not part of regular salary.

One of the city officers who was conversant with the matter testified that the action of the common council in adopting the 1959-1960 recommendation of the budget board was a temporary austerity measure due to loss of revenue; the intent was to restore to the retirees full pension benefits; and when the city adopted an income tax ordinance substantial sums were set aside for pension benefit payments once the courts passed on the constitutionality of the income tax ordinance.

There was testimony that the nature of the work of policemen and firemen had not changed, and that the hazard of those positions was not fundamentally different from the hazard faced by the retirees when they served. Deductions were made from the pay of active service employees for city and federal income tax in respect to the portions of their pay designated in service, hazard risk, longevity, and holiday; there was no such deduction in regard to the clothing or uniform allowance.

The trial judge found that both hazard risk and in service pay were increases in regular compensation, and that such increases in pay were so labeled to circumvent the charter requirements that retirees receive one-half thereof. He added: “the same goes for holiday pay and the same goes for uniforms. This is simply giving increases by-virtue of different titles.”

On July 14, 1966, a judgment was entered by the trial judge adjudicating this a class action and that the members of the class — plaintiffs and all persons who had retired as policemen, firemen, and members of the police signal and fire alarm systems — were entitled, as part of their retirement pensions, to; 50% “of all pay increases, including ‘in service pay increase’ and ‘hazard risk pay’; 50% of all uniform allowances; 50% of all paid holidays”; hut they “shall not recover any part of the longevity payments made to those of the same rank or grade on active duty”.

The judgment declared the increase in benefits retroactive to March 1, 1959, and covered benefits through the fiscal year 1965-1966. It also provided that, once computed, individual arrearages shall be set forth in a supplemental judgment and bear interest at 5% per annum from the date of said supplemental judgment, except that in the case of deceased employees interest shall'not run until after appointment of a special or general administrator to whom payment may be made.

The defendants appeal. The plaintiffs cross-appeal, claiming a right to 50% of longevity pay and interest from the date [August 24,1964] the petition demanding payment was filed with the city council.

I.

The charter of a city is its fundamental law, and all ordinances in conflict therewith are null and void, upon the principle that a statute which contravenes a constitution must fall. Mayor of City of Dearborn v. Dearborn Retirement Board of Trustees (1946), 315 Mich 18, 24; Thiesen v. Dearborn City Council (1948), 320 Mich 446; Brady v. City of Detroit (1958), 353 Mich 243.

The distinction sought to be created between “regular salary” and “any other pay” is clearly foreclosed by the charter language, which speaks simply in terms of “pay.” A fair reading of the charter language requires that the term “pay,” as used in the clause “1/2 the pay for said rank so changed”, be interpreted to mean the regular compensation currently paid to those of the rank held by the retiree at the time of his retirement. The crucial question, then, is what is regular compensation? We have no hesitancy in holding, on the facts of this ease, that in service pay and hazard risk pay are regular compensation. Those terms were devised in an attempt to take two bites out of the cherry with the deliberate purpose, and none other, of depriving retirees of the full pension rights which the charter mandates.

The charter provision requiring escalation or reduction of retirement pay expresses a purpose that retirement benefits will, in fact, escalate and reduce as the pay of the rank in which the retiree was serving at the time of retirement changes. The defendants’ argument would permit the city to keep the retirees’ pay constant — or, indeed, to effect only reductions and no increases — by simply adopting the correct nomenclature and dividing the pay of active service employees into categories plausibly packaged and labeled. We look beyond form to substance.

Holiday pay is defined by Ordinance No 246, approved November 12,1958, as a “sum equal to 8 times the maximum daily rate of pay,” payable 1/8 on the first payday after each of 8 designated holidays. We hold that holiday pay is part of regular compensation and, hence, pay.

As to longevity pay, various ordinances provide for it after 11 years of service, of which a minimum of 6 years has been accumulated in the same basic class or rank. While approval of the director of public safety, or the chief of the respective department, of the employee’s “conduct of work performanee” is required for longevity pay, the only record evidence is that a substantial number of employees whose years of service qualified them for longevity pay did in fact receive it. The maximum longevity pay increase is earned when one reaches 16 years of service. Since one must serve for 20 years to be eligible for retirement, it appears that a substantial number of the plaintiffs and members of the class would have received longevity pay had the ordinances concerning longevity pay been adopted prior to their retirement.

The longevity pay ordinances provide that longevity pay is not part of “base pay nor is it a reward based on mere length of service or seniority. It is incentive pay designed to retain and reward the firemen and police officers for future service who continue to serve meritoriously.” Is that not a definition of compensation — a consideration paid as an incentive to performance of good and faithful serviced The fact that the city finds it necessary or desirable to pay greater compensation to those who have served long and faithfully does not make such payment less than compensation. The amounts so paid are not gratuities.

Whether longevity pay is part of the pay of the rank formerly held by an individual retired employee depends upon his rank, and part of his “rank” is whether he served 11 years, 6 years in grade, and whether he would have received a satisfactory conduct recommendation. There is no reason to anticipate difficulty in resolving on remand that factual issue as to the retired employee plaintiffs and others in the class. Determination of the relevant facts in that regard should prove no greater problem than the mathematical computations required on remand.

Ordinance No 247, approved November 12, 1958, provides a “clothing allowance” of $100 for 1959, and $200 annually thereafter to all members of the fire and police departments. This was repealed by Ordinance No 259, approved May 31, 1960, providing an allowance for uniform replacement not to exceed $75 per year upon proof of actual expenditure therefor. Ordinance No 259 was rescinded by Ordinance No 284 on July 30, 1963.

Had the city of Hamtramck furnished uniforms to be worn by the employees during their time of service, we doubt whether it would be suggested the value of the uniforms was compensation. The form of payment is not controlling — whether dollars or coconuts. ‘What is important is whether the payment is a payment for services rendered or to be rendered.

We have considered, but decline to follow Anderson v. City of Long Beach (1959), 171 Cal App 2d 699, 702 (341 P2d 43, 46) where the court held that since the effect of providing a uniform allowance to active service employees was to add the amount of the allowance to their pay, such amount should be taken into account in computing the fluctuating pensions of retirees. It is a close question and one that perhaps could be decided either way. The amount of the uniform allowance does save the active service employee a corresponding amount and thus, in a sense, increases his pay. However, there is no evidence that the uniform allowance was intended or paid as compensation, or that anyone received the allowance who did not wear a uniform, or that, to state it differently, the allowance was anything more than reimbursement for an actual out-of-pocket expense necessarily incurred in the performance of duty. We do not think that every fringe benefit provided active service employees is necessarily “pay”. If the uniform allowance were larger or if there were evidence that the allowance was paid as compensation and regarded by tbe parties as such, we might have taken a different view.

We are not impressed by the fact that the city did not deduct the 5% contribution toward pensions, required of active service employees, from the in service, hazard risk, longevity or other payments referred to. Failure to have done so merely reflects an effort on the part of the city to be consistent with its own characterization that such portions of the compensation program are not “pay.” It would have been most ingenuous to have deducted the 5% from in service and hazard risk pay on the ground that they were “pay,” and then to have claimed that such payments were not “pay” for the purpose of computing retirement allowances. The failure to deduct such amounts is merely part of the attempt to relabel the container without changing its contents.

We must focus on what is in the container and not on what the city’s etymologists choose to call it from time to time. As used in the clause “1/2 the pay for said rank so changed”, “pay” means the regular compensation currently paid to those of the rank held by the retiree at the time of his retirement, including longevity compensation currently paid to those of the retirees’ rank that, had compensation of that kind been part of the compensation program at the time of the retiree’s retirement, the retiree would have been entitled to receive.

Defendants’ reliance on Hestand v. Erke (1957), 227 Ark 309 (298 SW2d 44), is misplaced. The court simply concluded on the facts in that case that payments for overtime were not part of the retiree’s regular compensation and, hence, were not part of the “pay” upon which his retirement benefit was.to be computed. The retiree had received the overtime compensation only in the closing months of his employment. All the payments in the case now before us were part of customary or regular compensation.

Defendants also cite White v. Hussey (1949 Sup), 115 NYS2d 515, affirmed without opinion 276 App Div 1028 (95 NYS2d 539). In that case the retired employee was paid an additional $650 per year on condition that said amount would not be included in computing his pension. The court held the city had the power' to impose that condition and the employee, having agreed to the condition, was bound thereby. It is not contended here that the retirees agreed to any reduction in their benefits.

In State, ex rel. King v. Abbott (1946), 43 Del (4 Terry) 472, 480 (48 A2d 745, 748), a cost of living increase and incentive pay were held to be part of “salary” for the purpose of computing pensions because they were “fixed compensation, paid relator at regular intervals” for services. In Abbott v. City of Los Angeles (1960), 178 Cal App 2d 204 (3 Cal Rptr 127), it was held that payments made to substantially all active service employees, called “longevity pay,” should be included in the computation of pensions required to be based upon the amounts paid active service employees.

The defendants also contend that the plaintiffs and the other members of the class are guilty of laches. We have examined the record and are satisfied the trial judge did not err in rejecting that defense.

II.

This leaves the question of prejudgment interest, i.e., interest allowed as damages, as distinguished from statutory interest. We note that under CLS 1961, § 600.6013, as amended by PA 1965, No 240 (Stat Ann 1965 Cum Supp § 27A.6013), interest on a judgment may now be recovered from the date the complaint is filed. Our Court has held that the amended statute does not apply to complaints filed prior to the amendment’s effective date, even though the judgment itself be entered subsequent to the effective date. Swift v. Dodson (1967), 6 Mich App 480. In-Swift, our Court carefully noted the distinction between interest on a judgment, which is purely statutory, and interest included as an element of damage. We are now concerned with the latter. The trial judge declined to allow interest until computation of the sums due the plaintiffs and the other members of the class. Plaintiffs and the class seek interest at the legal rate from the date, August 24, 1964, they filed with the Hamtramck city council the previously mentioned petition requesting payment of 50% of the various increments awarded active service employees.

Each of the contending parties presents an array of cases tending to support his point of view. In our effort to achieve a meaningful explanation, we have been greatly aided by Charles T. McCormick’s perceptive work, McCormick on Damages (1935), §§ 50-59; pp 205-233. He explains that when we inherited England’s common law, legal thinking had just recently gone beyond the theretofore accepted view that all compensation for the use of money was to be condemned as usury. Through a redefinition of terms, “usury” had been gradually restricted to excessive exactions for the use of money, and the term “interest” had come to describe permissible compensation.

“The stigma of religious and moral taboos, inherited from the dark era of prohibition, remained to stunt and distort the growth of all branches of the legal rules about compensation for delay in paying money or damages. This ancient prejudice has been singularly unfortunate in restricting the rational development of the practice of allowing interest as damages.” McCormick on Damages, § 51, page 209.

The concept that interest should be allowed as part of the damages for a delay in paying the principal damages was not readily accepted. As the law developed exceptions were made, and in particular cases the jury, or the trial judge as a matter of discretion, was permitted to allow interest as part of the damages. As case law defined those areas in which interest would be assessed as part of the damages, restrictions were placed on the unfettered exercise of jury and trial judge discretion.

It came to be a familiar principle that generally interest will be included as a matter of right where the amount claimed is “liquidated,” but not where the claim is “unliquidated.” Definitions of “liquidated” were not always consistent, .and close .cases created much confusion, until even the liquidated-unliquidated standard approached coalescence. In Cree Coach Company v. Wolverine Insurance Company (1962), 366 Mich 449, interest was allowed from the date of loss on an unliquidated amount which, said the Court, “was known or could have been’ easily ascertained” (p 463). McCormick contends that interest should he includible except where the damages are “at large” and thus, in the last analysis, depend upon the discretion of the trier of fact uncontrolled by any meaningful standard except overall reasonableness. McCormick on Damages, § 57, page 226.

The cases are in conflict. Interest has been denied on the ground that the claim was unliquidated. Nevertheless, interest has been allowed on unliquidated claims. Cree Coach Company v. Wolverine Insurance Company, supra. In a relatively early case, an action against a railway company, interest ivas allowed as part of the damage to abutting property.

“The old rule undoubtedly was that interest could not be allowed upon unliquidated damages, and, in actions of tort, damages are of course unliquidated. The tendency of courts has been, however, to set this rule aside, and adopt the more reasonable one, in cases of injury to property, that the jury must first determine the actual damage sustained, and allow ■interest upon that sum from its date. This Court has adopted this rule in the following cases: Lucas v. Wattles, 49 Mich 380; Kendrick v. Towle, 60 Mich 363, 368. Some cases hold that it is discretionary with the jury to allow interest on damages in .case of trespass to real property.” Taylor v. Bay City Street Railway Company (1894), 101 Mich 140, 146.

Still earlier, in Snow v. Nowlin (1880), 43 Mich 383, an action for misrepresentation, the Court observed (p 387):

“In cases of contract and many cases of tort the rule is well settled in this State that interest may be allowed by way of damages. The plaintiff is alloived full compensation for the injury he has sustained. He is to be placed as nearly as can be in the position he would have occupied if the representations made had been true. The difference in value will not accomplish this unless interest is added thereto.” (Emphasis added.)

The concept that interest should be allowed as part of damage in order to accomplish full compensation also finds expression in Lane v. Ruhl (1894), 103 Mich 38, 45, 46 (damages for detaining possession of real property: “clearly, any computation which would put nothing in the place of interest would not give full compensation”) and McCreery v. Green (1878), 38 Mich 172, an action for unpaid compensation, where, although there was “wide difference of opinion as to the measure of damage” (p 177), interest was allowed “in the nature of damages for the improper detention” (p 185). Similarly, see Steele v. Kellogg (1910), 163 Mich 132, 149, an action for fraud and deceit, where the Court allowed interest as a matter of law, observing, “compensation is Avhat the law means to allow in such a case.” More recently, in Mitchell v. Reolds Farms Co. (1934), 268 Mich 301, 313, an action pursuant to a profit-sharing agreement, the Court held:

“It is clear the interest here involved is recoverable by way of damages, for refusal to pay over money claimed to be rightfully due plaintiff, — for unlawful detention.”

The loss of “use,” or “detention,” factor was also mentioned in allowing interest in Coan v. Township of Brownstown (1901), 126 Mich 626, 631 (loss of use of threshing machine), and Edwards v. Sanborn (1859), 6 Mich 348, 356-358 (delayed delivery of machinery).

In Cree Coach Company v. Wolverine Insurance Company, supra, in allowing interest against the insurer from the date liability was denied, the Court stressed the benefit to the defendant and detriment to the plaintiff of the delay in paying unliquidated amounts owing under extended coverage insurance. The delay in payment, and resulting benefits and detriments, was again emphasized in Wilson v. Doehler-Jarvis Division of National Lead Company (1960), 358 Mich 510, 516, allowing interest from the date of loss on workmen’s compensation benefits. The Court recently followed its earlier holding in. Larsen v. Home Telephone Co. (1911), 164 Mich 295, 324, by allowing interest in an action for wrongful death as an element of damage from the date of accrual of the claim. Currie v. Fiting (1965), 375 Mich 440, 454, 488, 489.

The inclusion in the judgment of the substantial amounts here involved as interest is not a favor to be conferred, nor a penalty to be imposed.

“Interest in this State is not allowed as a punishment: It ‘is allowed as a legal compensation for lost use.’” Standard Oil Co. v. Payne (1922), 220 Mich 663, 671.

While no record has been made as to the dollar benefit to the defendant city and dollar cost to plaintiffs and the class of the delay in payment, we do not think the result can turn on such proofs. It would unnecessarily complicate lawsuits if the payment of interest were dependent upon such proofs. Any rule requiring such proofs would he unworkable.

We are persuaded the Michigan cases that allow interest as part of the damage in order to accomplish full compensation focus on the objectively sound facet of the matter. Although that principle seems clear, the difficult question of what is full compensation, neither excessive nor inadequate, is still very much with us. At one end of the spectrum, the allowance of interest as part of the damage for delay in paying an agreed sum presents no problem. At the other end, there is understandable reluctance to allow addition of an amount for interest to what is essentially a discretionary award, e.g., for pain and suffering, ungoverned by any standard other than overall reasonableness.

Between the debt fixed with complete certainty and the one completely “at large,” there is the range from those damages based on well-established facts, e.g., stock or commodity market prices, to those based on facts selected by the trier from widely disparate proofs.

In fashioning sensible rules of law, the disallowance of interest to avoid excessive compensation makes sense, not because the damages are unliquidated or otherwise uncertain but because to add interest would be redundant. The form in which a question is stated directs one’s thinking, and not infrequently influences the answer. We unnecessarily divert ourselves from the central inquiry — are the damages proportional' to the loss — when we unduly contemplate the various “tests.” We see no need to decide the somewhat metaphysical questions whether the principal damages here allowed were liquidated, or reasonably ascertainable at the time of the breach, or measurable by a fixed or established external standard, or by one referable to the documents upon which plaintiffs based their claim, or the like, even though the principal damages here probably could be fitted into several of those categories.

The allowance of interest here would not result in more than full compensation. It is apparent that not to allow interest would be to deny full compensation. As a result of the delay in payment, the defendant city has had the use of plaintiff’s money, in whatever amount ultimately is found due and without regard to when that computation was or could have been made, and plaintiffs have been denied the use of those funds. Irrespective of when the principal damages are-computed, the nature of the elements that make up the principal damages preclude an excessive award. The addition of interest thereto is not redundant, but rather is essential to avoid inadequate compensation.

In this State interest may be recovered from municipal corporations. Marion v. City of Detroit (1938), 284 Mich 476; Kaminski v. Wayne County Board of Auditors (1938), 287 Mich 62, 68. A demand ordinarily must be made upon the proper authority to start the running of interest. It has been held, however, that when demand would be futile, demand is not required. Thal v. Detroit Board of Education (1946), 316 Mich 351, 358; Tumey v. City of Detroit (1947), 316 Mich 400, 414. Here a demand in the form of a petition specifying their claims was filed by the plaintiffs on August 24, 1964. That petition was rejected on September 29, 1964. Plaintiffs do not request interest prior to August 24, 1964.

If demand was unnecessary, the members of the class who did not join in the petition would also obtain interest from August 24, 1964. We see no need, however, to determine whether demand was necessary. Upon rejection of the August 24, 1964, petition, any further request for payment by those who did not join in that petition clearly would have been futile. Having in mind the relatively small time interval between August 24 and September 29, 1964, and, thus, the relatively small sum involved for each member of the class, we simply hold that interest will be allowed to all those who joined in the petition from the date it was filed, and to all others from the date of its rejection.

The judgment is affirmed, except that on remand (1) there shall be a separate determination for each plaintiff and member of the class whether longevity pay is part of the pay he would have enjoyed had it been part of the compensation program at the time of Ms retirement, (2) the clothing and uniform allowance shall not be treated as pay, and (3) interest shall be allowed from August 24, 1964, the date of the petition to the city council, to those who signed the petition, and to all others in the class from the date of its denial, September 29, 1964.

Affirmed in part and reversed in part. No costs, a public question.

Fitzgerald, P. J., and McGregor, J., concurred.

       “Every person subject to retirement as above set forth shall be retired on a pension at the rate of 1/2 of the pay of the rank in whieh he was serving at the time of retirement, or his disability was caused, and in the event of any change at any time thereafter in said rate of pay, then at the rate of 1/S the pay for said rank so changed.” (Emphasis supplied.) (Charter of the City of Ham’ tyamck, chapter 18, § 4.)

       See, also, Streat v. Vermilya (1934), 268 Mich 1, 6, stating that the eharter of a city is the organic law thereof and is to be considered as other organic acts are considered; and Paulsen v. Portland (1893), 149 US 30, 38 (13 S Ct 750, 753, 37 L ed 637, 640) : “The city is a miniature State, the council is its legislature, the eharter is its constitution.”

       We also note that there have been periods of time when no 5% deductions were made from the salaries of those on active duty, and that pensions paid to retirees have not been funded but rather have been treated as an annual expense included in the budget.

       The distinction has not always been, observed. In Kermott v. Ayer (1863), 11 Mich 181, 184, the Court in an entirely different context stated: “Interest in Michigan is purely statutory.” That statement has been repeated where interest has not been allowed as part of the damage, Fitzpatrick v. Ritzenhein (1962), 367 Mich 326, 333; Township of Royal Oak v. City of Berkley (1944), 309 Mich 572, 583; and in Mitchell v. Reolds Farms Co. (1934), 268 Mich 301, 311, where interest was allowed.

       See discussion in Funkhouser v. J. B. Preston Company, Inc., (1933), 290 US 163, 168 (54 S Ct 134, 136, 78 L ed 243, 246); Cochrane v. Forbes (1929), 267 Mass 417 (166 NE 752) ; Midland Valley R. Co. v. Price (1927), 127 Okla 106, 113 (260 P 26, 31). Compare Brown v. Home Development Co. (1941), 129 NJ Eq 172, 177, 178 (18 A2d 742, 746).

        Great Lakes Steel Corp. v. Detroit, T. & I. R. Co. (1947), 317 Mich 1, 18; Coburn v. The Muskegon Booming Company (1888), 72 Mich 134, 149. In actions for services rendered, interest has been denied as a matter of law. In re Snow’s Estate (1947), 319 Mich 333, 340; Antonoff v. Basso (1956), 347 Mich 18, 32. Contrast Sweeney v. Adam Groth Co. (1934), 269 Mich 436, 440. Similarly, see Eitzpatriak v. Ritzenhein, supra, distinguishing other eases on the ground that the action there before the court sounded in tort, there had been no proof of demand for payment and the amounts claimed were unliquidated. See, also, Cataldo v. Winjack Corporation (1966), 4 Mich App 398, and Davis v. Walker (1869), 18 Mich 25, 26, where there were a large number of transactions and no balance between the parties had been struct.

       Interest has been allowed in a number of cases where damages were recovered for the destruction of personal property. Standard Oil Co. v. Payne (1922), 220 Mich 663, 669 (buildings); Gates v. Comstock (1897), 113 Mich 127, 129 (timber); Coan v. Township of Brownstown (1901), 126 Mich 626, 630 (threshing engine).

       Tliat interest should be allowed on withheld annuities, see Stringer v. Stevens’ Estate (1906), 146 Mich 181, 187; overruled on other grounds Morse v. Hayes (1908), 150 Mich 597; and Mason v. Soldiers’ Home Managers (1914), 181 Mich 347, 363. Prejudgment interest has been allowed a pensioner who successfully contended for added pension benefits. Mauch v. Pittsburgh Pension Board (1956), 383 Pa 448 (119 A2d 193). Compare Board of Trustees of Police Pension Fund of Glen Ellyn v. Village of Glen Ellyn (1949), 337 Ill App 183, 198, 199 (85 NE2d 473, 480, 481). See, also, Herrmann v. Gleason (CA 6, 1942), 126 3?2d 936, reviewing the Michigan eases and, purportedly in application of Michigan law, allowing interest on renewal rent determined by arbitration for the 20-montli period consumed by the arbitration proceeding; Marshfield Steel Company v. NLRB (CA 8, 1963), 324 F2d 333, 338.

       Where, however, the “prospective damages are to be reduced to present worth, it is equally just that damages whieh have accrued should carry interest from the date of accrual,” Currie v, Biting, supra, 454,