We must answer the second question in the affirmative. In Carpenter v Genesee County Board of Supervisors, 371 Mich. 295; 123 N.W.2d 708 (1963), the Supreme Court unanimously affirmed the denial of a writ of mandamus to compel the county board of supervisors to hold an incorporation election in Flint Township. Chief Justice CARR, writing for himself and three other justices, stated that the petition for incorporation was defective because it included territory of the City of Flint. Justice SOURIS, speaking for the other four justices, simply affirmed the denial of the writ on the basis that the plaintiffs had failed to show that they were entitled to it.
On December 19, 1961, the board adopted a resolution that the incorporation petitions were insufficient and that no further action thereon was required. This was followed by the adoption of a resolution declaring the legal sufficiency of the petition involved in the instant case and setting the date for an election on the question of the annexation of the property described therein to the city of Flint. Plaintiffs instituted mandamus proceedings against the board of supervisors to require the submission of the question of incorporation of the township as a city, which petition was denied by the circuit court, all 4 judges thereof sitting en banc. An appeal from such denial was taken to this Court and for the reasons set forth in our opinion in Carpenter v. Genesee County Board of Supervisors, 371 Mich. 295, we concluded that the judgment of the circuit court should be affirmed. The circuit court in its opinion in the instant case referred to its holding in the mandamus action and, based thereon, rejected the claim of the plaintiffs that action on the annexation petition was improper because said petition was in conflict with the previously filed incorporation petitions.