Board of Metropolitan Police v. Board of Auditors

Campbell, J. This is an application to compel the respondents to pay out of the treasury of Wayne county the expense claimed by relators to have been incurred in patrolling certain territory in the townships outside of Detroit under section 33 of Act No. 313, Laws of 1887, popularly known as the “Liquor Law.” A defense was put in by respondents to the effect that no duty such as that statute purports to lay upon them can be legally enforced. The argument was chiefly based on grounds independent of those affecting the constitutional objections applicable to other questions arising on the law, and the case is of such a nature that we prefer to base our action on these separate grounds [578] without reference to the general scope and character of the statute. The section before us for consideration reads as follows: “That for the better enforcement of the provisions of this act in that portion of the county of Wayne which forms the suburbs to the city of Detroit, the jurisdiction of the board of metropolitan police of said city is hereby extended over the townships of Springwells, Greenfield, Hamtramck, and Grosse Point in said county. And it shall be the duty of the board of metropolitan police to police said townships sufficiently strong to enable them to enforce the provisions of this act within the limits thereof, and for that purpose'said board of metropolitan police are authorized to increase the police force under their control, to mount said increase, or any portion thereof, and are vested with the same authority as is now conferred upon them within the corporate limits of the said city of Detroit, and may use all or any portion of the force under their control. “ The police force so employed in said townships shall have and are hereby vested with the same powers to enforce the provisions of this act, and to preserve the peace, as is by general law conferred upon the constables therein. The expenses of maintaining such extra force of police in said township shall be paid monthly by the county of Wayne out of the moneys paid into the treasury of said county under the provisions of this act, on duly certified vouchers therefor, prepared and submitted by said board of metropolitan police to the board of county auditors of said county, who are hereby directed to audit and pay the same in the same manner as other claims for services against the county of Wayne are audited and paid.” The ninth section of the liquor law requires one-half of the moneys paid for liquor taxes to be paid into the general fund of the county treasury. The metropolitan police board was originally created under an act of 1865 entitled — , “An act to establish a police government for the city of Detroit.” Laws of 1865, p. 99. Each commissioner must be a resident freeholder of Detroit, appointed by the Governor and Senate. All of the general [579] powers and duties of the board and its appointees are local, and some of them are new and peculiar. There have been more or less changes and amendments, but none that are important in the present inquiry. In People v. Mahaney, 13 Mich. 481, the validity of this act, so far as it authorized the creation of the force, was considered, and it was held sufficient to replace a city marshal by the officers substituted. Several other questions were discussed, but not decided, but reserved for future consideration as not necessarily in the case. No case has since been before this Court having much bearing on the validity of the statute. But the present case requires some consideration of the powers lawfully belonging to such a board. Although the title of the act refers to a police .government, this cannot mean a government in the ordinary Bense in which municipal and local governments exist. The word “system” would have been more appropriate, and not misleading. Under our system we can have no governments, general or special, that do not immediately represent a popular constituency, and no properly called governmental power can be lodged anywhere else. Our State Constitution has provided for local municipalities, embracing counties, cities, villages, townships, and school districts, which it has been held mean such bodies of those names as were of a nature familiar and understood. The Legislature has power to confer upon townships, cities, villages, and boards of supervisors local legislative and administrative powers such as are suited to their condition. But there is no other power mentioned in the Constitution for conferring similar public governing authority elsewhere, and these bodies are all created by popular elections. It was held in Attorney Gen. v. Detroit Common Council, 58 Mich. 213 (24 N. W. Rep. 887), that the people could not be subjected to any delegated powers of government not exercised by their own representatives. [580] It is evident, on all constitutional principles, that the police board and its appointees or deputies can only be regarded as lawfully exercising ministerial and administrative functions in obedience to the statutes of the State and the ordinances of Detroit, and no more. And under the title of the act creating them they are confined, in their legal action, to such territorial limits as belong to the city of Detroit, and such as might be allowed to be covered by city appointees if the city itself appointed its own police. See Allor v. Wayne Co. Auditors, 43 Mich. 76 (4 N. W. Rep. 492). It is not competent for the Legislature to enlarge their powers, in the way attempted here, by an act which is in no way amendatory to the act of 1865, but which takes the city board and as such gives it jurisdiction over a territory foreign to the city. The adjacent townships have no more legal dependence on a city than any others, and are just as much entitled to an independent existence. Not only is the police board a city board, but it is composed entirely of city resident freeholders. No one outside of the city can be represented on it even by the Governor’s appointment. This local board is not only given by this act the power to send the city police into the townships, but also is given what the statute calls “jurisdiction” there. And this is not a mere form, for it rests entirely in their discretion how many and what men shall be sent, and where they shall be detailed, in each township. All of the arrangements are left exclusively to the board, who can incur such expenses as they choose, and make the county treasury pay for it. The city of Detroit bears all the ordinary expenses of the board, and by this statute the county at large must bear the rest. It is nominally drawn from the liquor taxes in the county treasury, but those go into the general fund of each county, for general county purposes, and to that extent lessen the necessity of ordinary taxation, so that it amounts to the same [581] thing as direct taxation. The result is that the local hoard ■of Detroit draws from the funds of the county to carry on its ■own work in part of the townships entirely beyond its own jurisdiction, and at the expense as well of the cities and townships where none of this money is spent as of the townships patrolled. We think that no such extension of powers can be granted, and that the attempt to make the grant is illegal. It was claimed on the argument that this was only an enlargement of the police district. But supposing — what we are not prepared to decide — that the Legislature may create districts at its pleasure, it has not pursued the constitutional requisites for doing it and has not attempted to do it. There is no attempt to make this board cease to be a city board. All of its localized duties and facilities remain, and the taxation that provides for most of its outlays is city taxation. Its duties in connection with the city courts and the ■city government remain entirely unchanged. The four ■towns are in no way represented in its action any more than the rest of the county. We are not, therefore, required to consider whether the Legislature can create police districts not conforming to any ¡municipal subdivision of the State, or to pass upon any of the other questions of power which present themselves somewhat seriously concerning this exceptional variation in our system of local government. There are recognized limits to legislative power in this regard which it may be desirable to have settled, but which cannot be discussed here. We cannot pass upon them until they are brought here in some course of litigation, and therefore nothing can be assumed from our failure heretofore or now to rule upon them. The legislation upon Detroit matters has been so often changed and so peculiar as to require care in judging it. The mandamAis is denied. Champlin, Morse, and Long, JJ., concurred.