Summary
In Horrigan v Klock, 27 Mich. App. 107; 183 N.W.2d 386 (1970), a tort action, a similar immunity question was before this Court.
Summary of this case from People v. SmithOpinion
Docket No. 6,671.
Decided October 2, 1970.
Appeal from Genesee, Anthony J. Mansour, J. Submitted Division 2 June 11, 1970, at Lansing. (Docket No. 6,671.) Decided October 2, 1970.
Complaint by Albert P. Horrigan, Administrator of the Estate of William F. Argetsinger, against Henry Klock, Flint police officer, for damages arising out of a shooting. Plaintiff's motion to join the City of Flint as a defendant was denied. Judgment on a jury verdict of no cause of action. Plaintiff appeals. Reversed and remanded.
Benton, Hicks, Beltz Behm (John D. Nickola, of counsel), for plaintiff.
Edward P. Joseph, for defendant.
This case is an appeal from a jury verdict of no cause of action rendered against plaintiff as administrator of the estate of the decedent, William F. Argetsinger. The cause was a tort action and arose out of the shooting of the decedent by defendant, an officer of the Flint Police Department.
Appellant raises four issues in this appeal, only one of which is dispositive, as it requires that we reverse and remand for a new trial. The complaint in this cause was filed on December 19, 1967. On the first day of trial, November 20, 1968, the plaintiff filed a motion to join the City of Flint as a party defendant. The trial court denied the motion for the reason of governmental immunity, MCLA § 691.1407 (Stat Ann 1969 Cum Supp § 3.996[107]). On June 25, 1969, this Court handed down its decision in Maki v. City of East Tawas (1969), 18 Mich. App. 109, declaring that statute unconstitutional, insofar as it granted immunity to governmental bodies from all tort actions.
The statute was passed by the Legislature in 1964 and became effective in 1965. In the case of Briggs v. Campbell, Wyant Cannon Foundry Company (1966), 2 Mich. App. 204, aff'd, 379 Mich. 160, the court stated that an unconstitutional statute is void from the date of its passage. Quoting from 16 Am Jur 2d, Constitutional Law, § 177, pp 402, 403, the court stated:
"`The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed.'" 2 Mich. App. 204, 218.
Resultingly, the decision of this Court in Maki, supra, is fully retroactive and the statute declared unconstitutional there was void on the date it was passed. As a result, the trial court, through no fault of its own, erred when it did not permit the plaintiff to join the City of Flint as a party defendant. The city did not enjoy any immunity under the void statute.
Accordingly, the case is reversed and remanded for a new trial.