Order Michigan Supreme Court
Lansing, Michigan
March 7, 2008 Clifford W. Taylor,
Chief Justice
134213 & (69) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
CITY OF LANSING, Maura D. Corrigan
Plaintiff-Appellant, Robert P. Young, Jr.
Stephen J. Markman,
Justices
v SC: 134213
COA: 272927
Ingham CC: 05-000918-CZ
STATE OF MICHIGAN and WOLVERINE
PIPE LINE COMPANY,
Defendants-Appellees.
_________________________________________/
On order of the Court, the motion for leave to file brief amicus curiae is
GRANTED. The application for leave to appeal the May 8, 2007 judgment of the Court
of Appeals is considered, and it is DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.
WEAVER, J., would direct that oral argument be heard on the application for leave
to appeal.
MARKMAN, J., dissents and states as follows:
I would grant leave to appeal. Defendant builder is attempting to construct a
pipeline under several streets in plaintiff city. The Court of Appeals held that plaintiff’s
consent to this project was not required under MCL 247.183(2), and that Const 1963, art
7, § 29 did not necessitate a different result. City of Lansing v Michigan, 275 Mich App
423 (2007).
At issue is whether MCL 247.183(2) is consistent with the first sentence of Const
1963, art 7, § 29. MCL 247.183(2) states that, under the circumstances present here, a
utility company “is not required to obtain the consent” of the affected city. However, the
first sentence of art 7, § 29 states that a utility does not “have the right to the use of the
highways [or] streets” of any city “without the consent” of that city. Also relevant is the
second sentence of art 7, § 29, which states that a city possesses a right of “reasonable
control” over its streets “[e]xcept as otherwise provided in this constitution.”
2
The first sentence of the constitutional provision grants to cities the unqualified
authority to refuse consent to utility projects, whereas the grant of “reasonable control”
over city streets is qualified. This lack of qualification in the first sentence must be
considered in light of the express qualification in the very next sentence. Read together,
the difference between these grants of authority arguably gives rise to an inference that a
city’s right to withhold consent to a utility project cannot be defeated by other
constitutional provisions in the same fashion as a city’s right of "reasonable control."
When construing two constitutional provisions, this Court must give “proper
meaning and effect to both.” In re Request for Advisory Opinion, 479 Mich 1, 35 n 90
(2007). The specific right in the first sentence of art 7, § 29, to refuse consent to utility
projects, fits logically within the city’s general right in the second sentence to exercise
“reasonable control” over its streets. Therefore, to give meaning and effect to both
sentences, it may be inferred that there is some difference in terms of the Legislature’s
authority to overrule the city with regard to its exercise of the more specific right in
comparison with its exercise of the more general right. However, the Court of Appeals
renders these rights indistinguishable in terms of the Legislature’s overruling authority,
treating the specific right to refuse consent in an identical manner as the general right of
“reasonable control.” Thus, the Court of Appeals arguably gives no effect at all to the
first sentence of art 7, § 29.
Of course, the specific right of cities to refuse consent to utility projects may be
limited by another constitutional provision. In this regard, the Court of Appeals relied on
Const 1963, art 7, § 22, which states that a city may enact resolutions and ordinances
“subject to the constitution and law.” However, this begs the question of to which parts
of the constitution and which laws are the city’s actions properly subject. At least
arguably, the specific grant of constitutional authority to cities to refuse consent to utility
projects must control over the more general authority granted to the Legislature in art 7, §
22. See Jones v Enertel, 467 Mich 266, 271 (2002) (“[S]pecific provisions . . . prevail
over any arguable inconsistency with the more general rule.”).
I am cognizant of arguments concerning the wisdom of a single community being
allowed to effectively veto a utility project designed to benefit many communities in
Michigan. However, while some may wish to avoid facilitating such an anomalous
result, the first obligation of this Court is to faithfully maintain our constitution.
Plaintiff’s arguments are not frivolous and merit full consideration by this Court so that
the rights of cities under our constitution may be clearly understood.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 7, 2008 _________________________________________
d0304 Clerk