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Lundberg v. Corrections Commission

Lundberg v. Corr. Comm'n, 225 N.W.2d 752 (Mich. Ct. App. 1975)
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Court
Michigan Court of Appeals · State Appellate Courts
Decided
January 6, 1975
Docket
No. 16892
Judges
Lesinski, Bashara, Van Valkenburg
Citations
225 N.W.2d 75257 Mich. App. 3271975 Mich. App. LEXIS 1594
Cited by 10 2 descriptions by later courts

Opinion — Van Valkenburg

Van Valkenburg, J.

This is an original action by the plaintiff, an inmate at Marquette State Prison, seeking a writ of mandamus directing the defendant to promulgate rules and regulations for the operation of correction facilities pursuant to the provisions of MCLA 791.206; MSA 28.2276. This Court ordered the defendant to show cause why the relief sought should not be granted.

The statute involved in this case reads in pertinent part:

"The director, having first obtained the approval of *329 the commission, * * * , shall promulgate rules and regulations which shall provide:

"For the management and control of state penal institutions, correctional farms, probation recovery camps, the wayward minor program and youthful trainee institutions and programs for the care and supervision of youthful trainees separate and apart from persons convicted of crimes within the jurisdiction of the commission.” (Emphasis added.)

Mandamus is a discretionary writ and will issue against a public official only to compel the enforcement of a clear legal duty.

Livonia Drive-In Theatre v Livonia, 363 Mich 438 ; 109 NW2d 837 (1961). Ordinarily the act requested must be of a ministerial nature. However, the execution thereof may involve some measure of discretion.

Michigan Dental Society v Secretary of State, 294 Mich 503 ; 293 NW 865 (1940). If the act requires some discretion but is mandated by statute and the officer failed to carry out the provisions of the statute the courts may order him to do so.

Bischoff v County of Wayne, 320 Mich 376 ; 31 NW2d 798 (1948). Thus, in order to grant the relief prayed for we must find that there is a clear legal duty to promulgate rules and regulations.

It is a well-settled proposition that unless other considerations compel a contrary conclusion the use of the term "shall” means that the statute is mandatory.

Township of Southfield v Drainage Board, 357 Mich 59 ; 97 NW2d 821 (1959). In this case we see no reason for refusing to give "shall” its ordinary meaning.

The Commission in its brief has called our attention to the fact that parts of MCLA 800.1 et seq.;

MSA 28.1371 et seq.

dealing with the duties of the warden, clerk and physician have been repealed.

*330 This leaves no legislative pronouncement as to the proper functions of their responsibilities. We agree with the plaintiff that this repeal creates a void which can be corrected only by the promulgation of proper rules. The purpose of 1972 PA 179 , which repealed the foregoing provisions, as stated in its title was to "repeal * * * obsolete and inoperative laws”. Thus, the Legislature must have considered that MCLA 791.206; MSA 28.2276 was sufficient in detail to enable the Commission to formulate rules.

For the reasons stated we hold that the statute contains a clear legal mandate for the Commission to promulgate rules. Perhaps in anticipation of this ruling the Commission informs us it has retained the services of research assistants for the purpose of drafting rules. In light of this the Commission will be given a reasonable time not in excess of 90 days to initiate formal rule-making procedures under the Administrative Procedures Act.

The writ will issue if necessary. No costs, the interpretation of a statute being involved.

All concurred.

How later courts describe this case

Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.

Cited by 10 cases

View all citing references →
1975: 11976: 11977: 41978: 11979: 11985: 11995: 119752026peak 1977 · 4

Relies on it most ⓘ

  1. Floyd Spruytte v. Richard Walters and Ronald Schink753 F.2d 498 (6th Cir. 1985)
  2. Schweitzer v. Board of Forensic Polygraph Examiners259 N.W.2d 362 (Mich. Ct. App. 1977)
  3. King v. Director of the Midland County Department of Social Services251 N.W.2d 270 (Mich. Ct. App. 1977)
  4. Board of County Road Commissioners v. State Highway Commission261 N.W.2d 329 (Mich. Ct. App. 1977)
  5. Lawrence v. Department of Corrections276 N.W.2d 554 (Mich. Ct. App. 1979)
  6. People v. Charles Jackson249 N.W.2d 132 (Mich. Ct. App. 1976)

Most recent

  1. West Bloomfield Hospital v. Certificate of Need Board528 N.W.2d 744 (Mich. Ct. App. 1995)
  2. Floyd Spruytte v. Richard Walters and Ronald Schink753 F.2d 498 (6th Cir. 1985)
  3. Lawrence v. Department of Corrections276 N.W.2d 554 (Mich. Ct. App. 1979)
  4. Samuel Reiter Painting Co. v. Bill Miedler Homes, Inc.273 N.W.2d 592 (Mich. Ct. App. 1978)
  5. Board of County Road Commissioners v. State Highway Commission261 N.W.2d 329 (Mich. Ct. App. 1977)
  6. Schweitzer v. Board of Forensic Polygraph Examiners259 N.W.2d 362 (Mich. Ct. App. 1977)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Bischoff v. Cnty. of Wayne, 31 N.W.2d 798 (Mich. 1948) 39
Mich. State Dental Soc'y v. Sec'y of State, 293 N.W. 865 (Mich. 1940) 20
Twp. of Southfield v. Drainage Bd. FOR Twelve Towns Relief DR., 97 N.W.2d 821 (Mich. 1959) 19
Livonia Drive-In Theatre Co. v. City of Livonia, 109 N.W.2d 837 (Mich. 1961) 15

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