Summary
In Canton, the defendant county road commission notified the plaintiff townships that the road commission planned to discontinue its over 20 year old dust palliative program.
Summary of this case from Gilmore v. Board of Com'rs of Logan CountyOpinion
Docket No. 74461.
Decided March 5, 1985.
Allen, James Witthoff, P.C. (by Ronald E. Witthoff); Meyers, Hemming Polaczyk (by C. Gerald Hemming); Cummings, McClorey, Davis Acho, P.C. (by Owen Cummings); Bokos Plakas, P.C. (by C. Brian James); and William J. DeBiasi, for plaintiffs.
Robert E. Murphy, General Counsel, and Martin P. Krall, Jr., for Wayne County Road Commission.
Amici Curiae:
Bauckham, Reed, Lang, Schaefer Travis, P.C. (by Robert F. Travis), for the Michigan Townships Association.
John Cushman; and Downs, Zagaroli Downs, P.C. (by Tom Downs and Michael A. Zagaroli), for the County Road Association of Michigan.
Before: V.J. BRENNAN, P.J., and ALLEN and GRIBBS, JJ.
Defendant Wayne County Road Commission appeals as of right from an order of the Wayne County Circuit Court issuing a writ of mandamus. The third and fourth paragraphs of the judgment and order read as follows:
"It is further ordered, adjudged and decreed, that the defendant, Wayne County Road Commission, has the duty to keep in reasonable repair all improved county roads located within the plaintiff-townships so that said roads are reasonably safe and convenient for public travel; and
"It is further ordered, adjudged and decreed that a writ of mandamus be and the same hereby is issued compelling the defendant Wayne County Road Commission to continue its dust palliative program in the same level and frequency and on the same roads, as it existed prior to December 15, 1981."
Defendant road commission contends that the issuance of a writ of mandamus ordering the continuation of the dust palliative program was improper. We agree and strike the fourth paragraph of the order.
The controversy first arose when the road commission, on December 15, 1981, notified township authorities in Wayne County that the scheduled dust palliative program for local gravel roads would be discontinued. The road commission's dust program, which had been operative for more than 20 years, involved three yearly applications of calcium chloride to local gravel roads. The chloride solution was applied to minimize the dust level on local county roads. The program was terminated because of the increasing expense involved, the increasing demand for service, and the necessity to redirect resources to the county primary road system.
After the road commission notified the townships that the dust program would be terminated, the Wayne County Department of Health began issuing violation notices to the townships for violations of Article VI, § 6.6 of the Wayne County Air Pollution Control Regulations. They were issued for failure to eliminate the escape of contaminants from the unpaved roadways. The violation notices informed the townships that they were responsible for determining why the violations occurred and informed them that they were to take the necessary steps to prevent the further escape of contaminants. The township officials were also contacted by citizens and police agencies, who complained about the hazardous driving conditions on the unpaved roads. Users of the unpaved roads had problems with visibility — clouds of dust rising from the unpaved roads impaired their vision.
The townships initiated an action against the road commission, alleging that the road commission was responsible for violations of the Environmental Protection Act of 1972 and raising claims of negligence and nuisance. Additionally, the townships prayed for declaratory relief and a writ of mandamus. Specifically, the townships asked the court to compel the road commission to properly maintain the townships' roads by continuing the dust program.
At the evidentiary hearing, a great deal of evidence was presented to the effect that the dust is harmful to health and that it impedes safety by impairing drivers' vision. Testimony also established that dust palliative programs are part of road maintenance. However, a maintenance engineer for the Michigan Department of Transportation testified that dust palliative programs were a low priority in terms of necessary maintenance objectives, even though they were clearly part of safety and maintenance.
After the hearing, the trial court found that plaintiffs had standing to sue, that there was no adequate remedy at law and that money damages would not make the plaintiffs whole. The court found that the burden of collecting taxes to maintain the dust program should not be placed on the townships, and ordered the road commission to continue the program.
The preliminary issue raised by the road commission is whether plaintiffs have standing to bring this suit. The threshold question is whether they have an interest in the outcome of the lawsuit sufficient to invoke the controversy-resolving power of the court. Saginaw Public Library Board v District Court Judges, 118 Mich. App. 379, 385; 325 N.W.2d 777 (1982), lv den 417 Mich. 974 (1983).
The plaintiff townships have an interest in the outcome of this litigation sufficient to invoke the controversy-resolving powers of the judiciary. Plaintiffs received citations from the Wayne County Department of Health for the failure to eliminate the escape of contaminants from the unpaved roads and were informed that they were to take the necessary steps to prevent further escape of the contaminants. Thus, the road commission's failure to maintain the roads in a reasonable condition with respect to dust levels has had a direct impact on the plaintiff townships. Plaintiffs have asserted a sufficient stake in the outcome of this controversy to seek a writ of mandamus to compel the road commission to maintain the unpaved roads in the townships.
Defendants next argue that the issuance of a writ of mandamus ordering the continuance of the dust program was improper, because the road commission has no specific duty to operate the program.
"Mandamus lies only when there is a clear legal duty incumbent on the defendant and a clear legal right in the plaintiff to the discharge of such duty. Miller v Detroit, 250 Mich. 633; 230 N.W. 936 (1930). The specific act sought to be compelled must be of a ministerial nature, that is, prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Taylor v Ottawa Circuit Judge, 343 Mich. 440; 72 N.W.2d 146 (1955), Bills v Grand Blanc Township, 59 Mich. App. 619; 229 N.W.2d 871 (1975), State Board of Education v Garden City School District, 62 Mich. App. 376; 233 N.W.2d 547 (1975)." (Footnote omitted.) Oakland Bd of County Road Comm'rs v State Highway Comm, 79 Mich. App. 505, 509; 261 N.W.2d 329 (1977), lv den 402 Mich. 907 (1978).
It is undisputed that the road commission has a broad, general duty to keep all county roads in reasonable repair so that they shall be reasonably safe and convenient for public travel. MCL 224.21; MSA 9.121 provides in pertinent part:
"It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel." See Arrowhead Development Co v Livingston County Road Comm, 413 Mich. 505, 512; 322 N.W.2d 702 (1982).
However, the methods employed by the road commission in maintaining the roads are left to their discretion.
MCL 224.19; MSA 9.119 provides:
"(1) The board of county road commissioners may grade, drain, construct, gravel, shale, or macadamize a road under its control, make an improvement in the road which it considers best, and may extend and enlarge an improvement. The board may construct bridges and culverts on the line of the road, and repair and maintain roads, bridges and culverts.
* * *
"(3) The construction, improvement, and maintenance of roads, bridges, and culverts, shall be in accordance with plans and specifications furnished or approved by the county highway engineer, who shall have supervision of the construction. The county road commissioners shall have all the authority in respect to the roads, bridges, and culverts which is vested in highway officers in townships, including the right to condemn gravel for road purposes and to petition the county drain commissioner for an outlet drain as provided in section 8 of chapter 15."
This statutory language, providing that the commission "may" make improvements they consider best, illuminates the discretionary authority of the road commission. The statute does not list any specific methods which must be employed by the road commission in keeping the roads safe and convenient for public travel. Thus, the road commission has no clear and specific legal duty to control the dust on county roads via the specific program involved.
The trial court may order the road commission to maintain the gravel roads, which it has a clear duty to do. MCL 224.21; MSA 9.121. Evidence of the safety and driving hazards posed by unacceptable dust levels established that this duty of maintenance was not discharged by the road commission. Since this duty lies with the road commission, the County Department of Health was in error in issuing violation notices to the townships for failure to eliminate the escape of contaminants from the unpaved roadways. Such violation notices in the future are to be directed to the road commission.
Because the methods used to maintain gravel roads and reduce their dust levels are within the discretion of the road commission, the issuance of a writ of mandamus ordering the specific dust program was improper. Oakland Bd of County Road Comm'rs, supra. Thus, the fourth paragraph of the trial court's judgment and order is stricken. If the road commission can discharge its duty of maintenance by other means, then it is free to do so under the statutes.
We do not address the road commission's remaining arguments relating to the trial court's ordering the continuance of the dust program.
Remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.