The question considered in this case is the validity of an ordinance creating a pension system for the civil employees of the city of Detroit. The ordinance was sustained in the trial court and defendant has brought the question to this court by certiorari for review.
After the ordinance was passed it was submitted to the voters in the following form:
"Shall the city of Detroit provide for the retirement of employees who have been in the employ of said city or any of its departments or commissions for a period of twenty-five years subsequent to July 1, 1896, or who have attained the age of seventy years, provided said employee has been in the city's employ for not less than fifteen years, and the payment of pensions thereafter to such employees of a sum equal to one-half of their annual salary, but not in excess of nine hundred ($900) dollars per annum."
This proposition was adopted by a requisite majority of those voting thereon.
Plaintiff, who had been continuously in the service of the city for 27 years, applied to the civil service commission for his pension, amounting to $900 per annum. It was granted. The refusal of defendant to recognize it as a valid claim against the city started this litigation. Plaintiff applied for mandamus to compel payment, and the trial court granted it.
Defendant argues two questions: *Page 443
(1) Because chapter 5, title 9 of the charter of the city of Detroit is beyond the scope of Act No. 279, Pub. Acts 1909 (the home rule act), and, therefore, ultra vires.
(2) Because it is in direct contravention of section 25, article 8 of the Constitution of the State of Michigan, and, therefore, unconstitutional.
The provisions of the home rule act under which it is sought to justify the ordinance are the following:
"(3306) SECTION 3. Each city charter shall provide: * * *
"(c) For the qualifications, duties and compensation of its officers.
"(3307) SEC. 4. * * *
"(f) For the establishment of any department that it may deem necessary for the general welfare of the city, and for the separate incorporation thereof, Provided, however, That these provisions shall not be construed to extend to and include public schools.
"(t) For the exercise of all municipal powers in the management and control of municipal property, and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the Constitution and general laws of this State."
If we concede for the moment the power to create a pension act for civil employees of a municipality, has that power been delegated to the city of Detroit? An examination of the provisions cited does not disclose that the power has been expressly granted. The question then arises, Has it been impliedly granted? It is said the test of the right by implication to exercise any particular power is the necessity of such power, not its convenience. Crofut v. City of Danbury,65 Conn. 294 (32 A. 365); Clements v. McCabe, 210 Mich. 207. *Page 444
If measured by this test, can the implied power to exercise this claimed right be found? It is not claimed that this right must be exercised in order to make any express power effective or efficient. If the city's right to pension its civil employees is denied, it in no way lessens the strength and force of the city government. The implication cannot, therefore, be established on the ground of necessity.
It is argued that subdivision (c), heretofore quoted, which provides for the qualification, duties and compensation of its officers authorizes the inference that the council has the implied power. Because the city has the power to select employees and define their qualifications and to fix their compensation, it does not follow that from that power a right could be implied to tax the inhabitants of the city to continue to pay the employees a percentage of their yearly salary after they had ceased to render any services for the city.
A further question arises as to whether the creation of a pension fund for civil employees is a public purpose within the meaning of the Constitution and taxing laws. And whether this would not be granting extra compensation after the services were rendered and after the contract had been entered into in violation of section 3, article 16 of the Constitution, is also a question.
A still further reason for refusing to find an implied authority to exercise this right is because it is a doubtful one. The question whether a municipality has the right to tax to raise a fund to pay additional compensation to civil employees after the service is ended and the contract price therefor has been fully paid, is a doubtful one.
A consideration of these questions leaves us in serious doubt whether the ordinance can be sustained by implied power. Being in doubt we should hold the power does not exist.Crofut v. City of Danbury, *Page 445 supra; City of Port Huron v. McCall, 46 Mich. 565; 28 Cyc. p. 265. In the last citation it is said:
"Where a particular power is claimed for a municipal corporation, and particularly where private right is infringed or imperiled by a power claimed, any fair, reasonable doubt as to the existence and possession of the power will be resolved against the corporation and the power denied to it."
"It is a well-settled rule of construction of grants by the legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public. * * *
"When a State means to clothe a corporate body with a portion of her own sovereignty and to disarm herself to that extent of the power that belongs to her, it is so easy to say so, that we will never believe it to be meant when it is not said. In the construction of the charter, to be in doubt is to be resolved; and every resolution which springs from doubt is against the corporation." Grand Rapids, etc., Power Co. v. Grand Rapids,etc., Gas Co., 33 Fed. 667.
"The principle of strict construction should not be pressed in any case to such an unreasonable extent as to defeat the legislative purpose fairly appearing upon the entire charter or enactment. Perhaps the rule as it is briefly expressed in the text best embodies the result of the adjudications upon this point, namely: If, upon the whole, there be fair, reasonable and substantial doubt, whether the legislature intended to confer the authority in question, particularly if it relates to a matter of extra-municipal or unusual in its nature, and the exercise of which will be attended with taxes, tolls, assessments or burdens upon the inhabitants, or oppress them, or abridge natural or common rights, or divest them of their property, the doubt should be resolved in favor of the citizen and against the municipality." 1 Dillon on Municipal Corporations (3d Ed.), pp. 118, 119, note. *Page 446
There is still more or less of a prevailing opinion that under the home rule act the local legislature may legislate with the same freedom that the State legislature does. In view of this, it may not be unprofitable to repeat what was said inCity of Kalamazoo v. Titus, 208 Mich. 252, bearing on that question:
"Political experiment has not yet produced, in this State, the autonomous city, — a little State within the State. We have a system of State government and the right of local self-government is, and always has been, a part of the system. We have, as we have always had, a State Constitution, the fundamental law. By it, now, as formerly, the legislative power of the State, and all of it, is reposed for exercise in a legislature; save only as reserved by referendum and initiative proceedings, which are not here involved."
It appears to be conceded that the ordinance in question is not supported by any express authority conferred by the legislature, and we are of the opinion that no implied power can be found in any of the provisions of the statute which would authorize the city of Detroit to create a pension system for its civil employees. A pension system for civil employees (outside of the hazardous employments) is an innovation in the conduct of municipal affairs. It is an entry into a new field and seriously affects the taxing power of the city. It is a question upon which there is much diversity of opinion. It is not only a debatable question but it involves statutory and constitutional questions. It involves an important question of State policy. It is rather puzzling when one undertakes to explain why city employees should be pensioned, and boiler makers and dress makers should not be. There may be some sound reason why a city employee with an easy job should not lay aside something in his working days to make the closing days of his life more comfortable and interesting, as well as a carpenter or a blacksmith. If there be a *Page 447 reason it is for the legislature to consider and answer by declaring a State policy, as has been done in nearly every other State where the question has reached the courts. In nearly all the cases cited the courts considered legislative acts and not municipal ones. The question is a serious one and demands the best thought of the legislature. It should not be left to the uncertain reasoning and conclusions of city and village councils.
Taking the view we do of the first question, the second one will not be discussed.
The order of the trial court should be reversed and the petition denied. No costs should be allowed.
FELLOWS and WIEST, JJ., concurred with BIRD, J.