City of Pleasant Ridge v. Governor

169 N.W.2d 625, 382 Mich. 225, 1969 Mich. LEXIS 102

• Court: Michigan Supreme Court
• Decided: May 5, 1969
• Docket: Calendar 19-21, Docket 52,046, 52,047, 52,352
• Status: Published

Opinions

Black and T. M. Kavanagh, JJ.

Alleging unconstitutionality of PA 1967 (Ex Sess), No 12, (MCLA 1969 Cum Supp §§ 252.151-252.158, Stat Ann 1969 Cum Supp §§ 9.1095 [51] —9.1095 [58]), the plaintiffs sought to enjoin construction through the municipalities of Pleasant Ridge and Lathrup Village of planned interstate highway 1-696. The circuit court dismissed all 3 complaints with prejudice. Previous delays in carrying out the declaration of policy appearing in the Federal-aid highways act of 1958 (23 USC § 101 et seq.) having been considered, we granted bypass of the Court of Appeals February 6, 1969, pursuant to GCR 1963, 852. All 3 causes were consolidated and submitted March 4, 1969. Our judgment of affirmance, reciting that “An opinion or opinions will.follow as soon as same have been considered and signed”, was entered May 5, 1969.

The generally projected purpose of interstate highway 1-696 has been and now is that of joining-present interstate highways 1-94 and 1-75, from east to west, across parts of Macomb and Oakland counties. The route through the mentioned municipalities having- been approved under Act 12 by the highway location arbitration board, the sole issue brought up for review is whether that approval and the statutory proceedings leading up to same are valid as against plaintiffs’ constitutional attack. A second question, raised by the Court during oral submission (see Dation v. Ford Motor Co. [1946], 314 Mich 152, 159-161) and subsequently briefed by the parties appellant and appellee, will be treated in the second division of this opinion.

The foregoing statement of question brought up for review purposely excludes from current consideration any issue that might arise should condemnatory action be taken by the department of State highways under section 7 of Act 12, the reason being that the department has not as yet, in its own claimed right, undertaken to acquire property in either of the two municipalities by condemnation deemed by it “necessary to provide for the completion and successful operation of the interstate highway and appurtenant facilities.” Section 7, of which more presently, reads as follows:

“Sec. 7. Approval by the board is deemed to be consent to designating the route as an interstate highway and, notwithstanding any provision to the contrary in any law, the department may forthwith proceed to acquire property, by condemnation or otherwise, deemed by the department to be necessary to provide for the completion and successful opera: tion of the interstate highway and appurtenant facilities.”

1. The Constitutional Validity ok PA 1967 (Ex Sess), No 12.

Act 12 is entitled “An act to provide for arbitration of disputes involving the determination of routes for interstate highways through municipalities and to authorize the acquisition of property therefor.” By significant references and express definition the act is keyed to and made an effective adjuvant of the Federal-aid highway act of 1958 (Title 23 USC § 101 et seq.), in particular section 128, subd (a) of Title 23.¹

Section 1, subd (d) of Act 12 defines an “interstate highway” as meaning “a highway route on the interstate system as defined in and designated pursuant to title 23 of the United States code, prior to the effective date of this act.” Other specific definitions, appearing in section 1, demonstrate an unmistakable legislative intent to resolve, by administrative action of a newly-created interstate highway location board, all differences arising with respect to the “route location” of an interstate highway when it is sought to extend such a highway to or through an “affected municipality.” The thrust of the act is manifest. It is that of implementing by reference to the cited Federal statute the purposes of and financing afforded only by the latter.

Sections 2 through 6 of the act provide that, after the State highway commission has reviewed proposed interstate highway routes and has deemed it necessary “to resolve disputes concerning the routes through 1 or more municipalities,” the commission shall institute proceedings designed to provide notice to and the public hearing of representatives of the department, of the affected municipalities and of “such other persons as are parties in interest,” all for the purpose of arriving at a final administrative determination “of the route” with provision that such determination when made shall constitute an “approval” that is “final and binding upon the department and the affected municipalities.” At this juncture compare the purpose of sections 2 through 6 with the congressional purpose of quoted 23 U8C § 128, subd (a). It is in this setting, of what is popularly known as a “reference statute,” that we undertake to decide the important constitutional questions which the respective plaintiffs have raised in the circuit court. See discussion of reference statutes, post at p 249 et seq.

Section 7 of the act, not thus far called into play so far as concerns this 1-696 project and any litigation before us, provides per quotation ante for acquisition of property deemed requisite to the completion and operation of the proposed interstate highway and the facilities thereof. The validity of that section, which we regard as severable within CL 1948, § 8.5 (Stat Ann 1969 Nev § 2.216), is not at present before the Court. No proceedings except those leading up to section 6 approval have thus far been instituted. For elaboration, see the second division of this opinion.

For the purposes of review of the constitutional questions posed below and argued here, we accept the statement thereof which the appellant city of Pleasant Nidge has presented. That statement is fairly representative of all questions considered in the original briefs of the parties appellant and has been accepted by the attorney general pursuant to GCR 1963, 814.1.

“1. Does PA 1967 (Ex Sess), No 12 [MCLA §§ 252.151-252.158, Stat Ann 1969 Cum Supp .§§ 9.1095(51)-9.1095(58)] violate Const 1963, art 7, §§ 29, 31, in that its effect is to:

■ “(a) Deprive appellant and other local units of government of the reasonable control of their highways, streets, alleys and public places.

“(b) Vacate or alter roads, streets, alleys and public places under the jurisdiction of appellant and other local units of government.

“(c) Violate the provisions of CLS 1961, § 252.52 (Stat Ann 1958 Rev § 9.1094[2]) and CL 194c3, § 213.71 (Stat Ann 1958 Rev § 8.171, subd [i])?

“2. Is PA 1967 (Ex Sess), No 12, which provides for compulsory binding arbitration of disputes over .the location of interstate highways, unconstitutional as:

“(a) An illegal and improper delegation of power, or

“(b) An improper delegation of power without setting up adequate standards or guidelines for the exercise of the power granted ? * * *

“3. Is PA 1967 (Ex Sess), No 12, unconstitutional in that it fails to provide for a right of appeal, or is it an administrative agency whose decision is appealable pursuant to Const 1963, art 6, § 28?

• “4. Is PA 1967 (Ex Sess), No 12, unconstitutional in. that it takes away the jurisdiction and control of .the State highway commission over all State trunk-lines, as well as abdicates its responsibility of determining necessity prior to condemnation, in violation of Const 1963, art 5, § 28?

•• “5. Is PA 1967 (Ex Sess), No 12, unconstitutional in that it denies appellant and its citizens equal projection of the laws and takes the property of appellant and that of its citizens without due process of law in violation of Michigan Const 1963, art 1, § 17, and Amendment 14 of the Constitution of the United States?”

In view of our' determination that Act 12 is hut ancillary to the Federal-aid highway act of 1958,² it appears definitely • — ■ and we therefore find — that the only posed questions of moment appear in stated questions 1, 2, and 3. We refine them to these:

1. Does Act 12 deprive the appellant municipalities of the reasonable control of their highways, streets, alleys, and public places in violation of article 7, § 29?

2. Does Act 12 vacate or alter any road, street, alley, or public place under the jurisdiction of the 'appellant municipalities in violation of section 31 of the same article?

3. Is Act 12 unconstitutional in that it undertakes to delegate legislative power to an administrative commission without having included therein requisite standards for the exercise of power granted thereby ?

4. Is Act 12 unconstitutional in that it fails to provide a right of judicial review of action taken thereunder by the highway location arbitration board ?

Our answer to restated questions 1 and 2 is foretold by that which appears above. No proceedings designed to condemn public ways or public property in either of the two municipalities have been commenced by the department of State highways. Whether the department may with constitutional sanction condemn such ways or property is a serious question, sections 29 and 31 of article 7 considered in array with quoted section 7 of Act 12.³ If it were not a fact that the cited Federal statute, of which Act 12 is but subsidiary, provides what we must presume is constitutional authority for acquisition, by the United States, of public as well as private property in furtherance of the purposes of the interstate system (see 23 USC §§ 107, 108), section 7 might fail indeed to survive a judicial test for violation of section 29 and 31, section 31 in particular.

That question need not be decided now, however. We are concerned presently with the validity of proceedings thus far taken under sections 1 through 6 of Act 12, and we find that those proceedings do not violate sections 29 and 31. The reasonable control reserved to the appellant municipalities by section 29 has not been taken from them under or in pursuance of Act 12, and the legislature has not vacated or altered any public way or place therein, in violation of section 31. When and if the department of State highways should undertake to condemn public ways or places, or both, within either municipality, will be the rightful occasion for an article 7 test of its doings. All that has been done thus far, upon authority of Act 12, is that of entry of an “approval” by the board of an interstate highway route or “location” which is “final and binding upon the department and the affected municipalities.” That approval as entered doubtless will be forwarded to the secretary of commerce as a part of the department’s certificate which quoted 23 USC § 128, subd (a) requires.

This disposes of restated questions 1 and 2. We come then to the outstanding constitutional question; whether Act 12, devoid as it is of standards or guidelines within the four corners thereof, invalidly delegates legislative power to the highway location hoard.

Act 12, standing by itself, admittedly contains no standards within our constitutional rule. See Osius v. City of St. Clair Shores (1956), 344 Mich 693 (58 ALR 2d 1079) and Homrich v. Storrs, 372 Mich 532. If Act 12 was not what it is, namely a statute which by reference adopts or brings within its scope the provisions of another statute in order that it may become operative, invalidity thereof as charged would be apparent. Act 12 however is such a reference statute,⁴ and the Federal statute to which it refers and upon which its operational purpose is dependent sets forth a great plethora of specific standards to which all local functionaries defined in section 1 thereof, the “board,” the “department,” the “commission” and the “affected municipality,” must conform on penalty of no financing and no construction of highway 1-696. That is enough to meet and overcome the “no standards” argument which counsel have so forcefully presented.

For express examples of the Federal standards to which Act 12 is geared by referential incorporation, see section 101(b) “definitions and declaration of policy”; section 103(d) “Federal aid systems”; section 106(a) “plans, specifications and estimates”; § 109(a) (b) “standards”, and section 315 “rules, regulations and recommendations,” all of Title 23, United States Code. And, in connection with section 315 thereof, see Yol. IY “Regulations, Standards, and Statements of Policy,” appearing in the Code of Federal Regulations (23 CFR, ch 1, pt 1) as currently compiled by the department of commerce and issued by the bureau of public roads.

The principle of statutory adoption or incorporation by reference is no stranger to Michigan. Beginning prominently with People v. Malsch (1898), 119 Mich 112, 115:

“The law of 1885 refers to the then-existing disorderly act, instead of repeating the substance of its pertinent provisions. By such reference, such act became a part of the act of 1885; and it is an established rule that in such a case it is not affected by a subsequent repeal of the act referred to. See Endlich, Interpretation of Statutes, § 492. We have followed this rule in the cases of Darmstaetter v. Moloney (1881), 45 Mich 621, and Regents of University of Michigan v. Auditor General (1896), 109 Mich 134.”

and carrying through Public Schools of the City of Battle Creek v. Kennedy (1929), 245 Mich 585, 590, 591:

“In Darmstaetter v. Moloney, 45 Mich 621, 624, it it said:

“ ‘The rule that a piece of legislation for a particular city which adopts under general words of reference a specific regulation in a separate general law is not to be taken as adopting prospectively the future alterations in the provision of the general law so appropriated, unless the intent therefor is express or strongly implied.’ * * *

“ ‘There is another form of adoption wherein the reference is, not to any particular statute or part of a statute, but to the law generally which governs a particular subject. The reference in such case means the law as it exists from time to time, or at the time the exigency arises to which the law is to be applied.’ 2 Lewis’ Sutherland Statutory Construction (2d ed), § 405.

“In Cole v. Wayne Circuit Judge (1895), 106 Mich 692, it is said:

“ ‘Section 8307 [2 How Stat] does not limit the procedure upon appeal to the provisions of the ■justices’ act as they then existed. It provided by general reference to another law, ajid is intended to furnish, a rule for future conduct, “always to be found, when it is needed, by reference- to the law existing at the time when the rule is invoked.” Endlich, Interpretation of Statutes, § 493; Kugler’s ■Appeal (1867), 55 Pa St 123.’”,

the principle was adhered to most recently in Haveman v. Kent County Road Commissioners (1959), 356 Mich 11, 18:

“It is an established rule that when one statute adopts by reference a definition in a former statute such definition becomes a part of the later statute and is not affected by the subsequent amendment or repeal of the earlier act containing the definition. People v. Malsch (1898), 119 Mich 112 (75 Am St Rep 381); Wayne County Prosecuting Attorney, ex rel. Taxpayers, v. City of Highland Park (1947), 317 Mich 220.”

Nor is this principle of construed intent a latecomer to the Federal system:

“Criticism is made of the statute because it does not set forth the new rules but merely adopts them by a generic reference. But the criticism is without merit. The reference, as is readily understood, is to the employers’ liability act of April 22, 1908, c .149, 35 Stat 65, and its amendments. This is a ;recognized mode of incorporating one statute or sys.tem of statutes into another, and serves to bring into the latter all that is fairly covered by the reference. Kendall v. United States (1838), 12 Pet (37 US) 524, 625 (9 L Ed 1181, 1221); In re Heath (1891), 144 US 92 (12 S Ct 615, 36 L Ed 358); Corry v. Baltimore (1904), 196 US 466, 477 (25 S Ct 297, 49 L Ed 556); Interstate Consolidated Street R. Co. v. Massachusetts (1907), 207 US 79, 84 (28 S Ct 26, 52 L Ed 111, 114,12 Ann Cas 555).” Panama R. Co. v. Johnson (1923), 264 US 375, 391, 392 (44 S Ct 391, 68 L Ed 748).

“The adoption of an earlier statute by reference makes it as much a part of the later act as though it had been incorporated at full length. Kendall v. United States (1838), 12 Pet (37 US) 524, 625 (9 L Ed 1181, 1221); In re Heath (1891), 144 US 92, 94 (12 S Ct 615, 36 L Ed 358, 359) ; Interstate Consolidated Street R. Co. v. Massachusetts (1907), 207 US 79, 85 (28 S Ct 26, 52 L Ed 111, 114, 12 Ann Cas 555). It brings into the later act ‘all that is fairly covered by the reference’ (Panama R. Co. v. Johnson [1923], 264 US 375, 392 [44 S Ct 391, 68 L Ed 748, 755]); that is to say, all the provisions of the former act which, from the nature of the subject matter, are applicable to the later act.” Engel v. Davenport (1926), 271 US 33, 38 (46 S Ct 410, 70 L Ed 813).

Following lengthy quotation of Mr. Justice Cooley’s opinion of People, ex rel. Drake, v. Ma-haney (1865), 13 Mich 481, the supreme court of Washington in State v. Rasmussen (1942), 14 Wash 2d 397 (128 P2d 318, 320), went on to describe reference statutes as follows:

“ ‘Statutes which refer to other statutes and make them applicable to the subject of the legislation are called “reference statutes.” Their object is to incorporate into the act of which they are a part the provisions of other statutes by reference and adoption. Reference statutes are of frequent use to avoid encumbering the statute books by unnecessary repetition, and they have frequently been recognized as an approved method of legislation, in the absence of constitutional restrictions. * * * When in one statute a reference is made to an existing law, in prescribing the rule or manner in which a particular thing shall be done, or for the purpose of ascertaining powers with which persons named in the referring statute shall be clothed, the effect generally is not to revive or continue in force the statute referred to for the purposes for which it was originally enacted, but merely for the purpose of carrying into execution the statute in which the reference is made.’ 25 RCL Statutes, § 160, pp 907, 908.”

Implicit in one of the supplemental briefs received since submission of these cases is allegation that necessary standards must be set up in the act by which an administrative tribunal is appointed and directed to act. We respond by quotation of the text of 1 Am Jur 2d, Administrative Law, § 116 pp 919, 920:

“The standard which is to guide the discretion of administrative agencies need not in all instances be expressly stated in the statute or ordinance. It is not always necessary to prescribe a specific rule of action to govern the exercise of powers conferred, particularly where a standard is implied in the statute or ordinance conferring the power. The standard to guide a particular act which in terms is not limited by any specific standard may be found within the framework of the statute under which the act is to be performed, or may inhere in its subject matter or purpose, and a clearly defined field of action may implicitly contain the criteria which must govern the action. Also, a standard may be found in other pertinent legislation, or an executive order, or in the field of law governing the operation of the agency. The courts will not impute to the legislature an attempt to enact an unconstitutional law, and will construe the act, when reasonably possible to do so, as vesting powers which may be lawfully exercised”,

and by reference to a strikingly applicable and well-reasoned decision to which the text refers, that is, Senior Citizens League, Inc., v. Department of Social Security (1951), 38 Wash 2d 142, 160 (228 P2d 478). In that case the question now in discussion was decided this way:

“The significance of this declaration of section 2 of No 178 as a legislative guide or standard is apparent, in view of the well-known fact that Federal matching funds are made available to the States only where there is adherence to general principles and standards formulated at the Federal level. The result is that there must be read into No 178, as additional legislative standards, such of these Federal principles and standards which must be complied with in order to obtain Federal matching funds. See Morgan v. Department of Social Security (1942), 14 Wash 2d 156, 185 (127 P2d 686, 699), which dealt with this problem at length.”

The fourth and last restated question, pointing as it does to absence from Act 12 of any provision for judicial review of determinations made by the highway location board, is answered by Imlay Township Primary School District No. 5 v. State Board of Education (1960), 359 Mich 478, and Board of Education of Grand Rapids v. State Tax Commission (1939), 291 Mich 50. Act 12 does not undertake to prevent judicial review, as did the statute considered in the last cited case. See pages 53, 54 and 62 of the report thereof. Nor does it suggest intent to bar review by means of an application for and grant of any constitutional writ which, under section 4 of article 6, this Court may issue. There is hence no need for elaboration of the point, section 28 of the same article having made complementing provision for the review these appellants say Act 12 does not provide.

2. Condemnation and the Federal State Relationship.

We now turn to the second major question raised by the Court at oral arguments and subsequently briefed by the parties. (See Dation v. Ford Motor Company [1946], 314 Mich 152, 160, 161.)

The crus of the legal issues posed by the Court at oral arguments involve the construction and interpretation of 23 USC § 107, which reads in part:

“(a) In any case in which the secretary is requested by a State to acquire lands or interests in lands (including within the term ‘interests in lands’, the control of access thereto from adjoining lands) required by such State for right-of-way or other purposes in connection with the prosecution of any project for the construction, reconstruction, or improvement of any section of the interstate system, the secretary is authorized, in the name of the United States and prior to the approval of title by the attorney general, to acquire, enter upon, and take possession of such lands or interests in lands by purchase, donation, condemnation, or otherwise in accordance with the laws of the United States (including the act of February 26, 1931, 46 Stat 1421), if—

“(1) the secretary has determined either that the State is unable to acquire necessary lands or interests in lands, or is unable to acquire such lands or interests in lands with sufficient promptness; and

“(2) the State has agreed with the secretary to pay, at such time as may be specified by the secretary an amount equal to 10 per centum of the costs incurred by the secretary, in acquiring such lands- or interests in lands, or such lesser percentage which represents the State’s pro rata share of project costs as determined in accordance with subsection, (c) of section 120 of this title.

“The authority granted by this section shall also-apply to lands and interests in lands received as grants of land from the United States and owned or held by railroads or other corporations.”

We must inquire not only as to the authority of the Federal government to acquire, by purchase or condemnation, lands or interests in lands required for a successful construction of the proposed interstate highway, but also whether there are any conditions precedent, predicated upon State law, to the invocation of this power. In short, this Court must determine the interrelationship between the Federal act, the relevant Federal rules, and the Constitution and laws of this State.

The starting point of our analysis of these questions is the supremacy clause of the United States Constitution, art 6. The pragmatics of the situation here involved and the applicability of the supremacy clause were well stated by Justice Bradley in Stockton v. Baltimore & N. Y. R. Co. (CC D NJ, 1887), 32 F 9, 19:

“The argument based upon the doctrine that the States have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, cannot avail to frustrate the supremacy given by the Constitution to the government of the United States in all matters within the scope of its sovereignty. This is not a matter of words, but of things. If it is necessary that the United States government should have an eminent domain still higher than that of the State, in order that it may fully carry out the objects and purposes of the Constitution, then it has it. Whatever may be the necessities or conclusions of theoretical law as to eminent domain or anything else, it must be received as a postulate of the Constitution that the government of the United States is invested with full and complete power to execute and carry out its purposes.” (Emphasis added.)

Once we recognize the existence of the supremacy clause it is easy to understand its pervasiveness and applicability to. all specific powers granted either by the Federal Constitution or by valid enactments of Congress. The operation of the supremacy clause, so well recognized in the area of interstate commerce, applies with equal force in the area of eminent domain.

In United States v. Carmack (1946), 329 US 230 (67 S Ct 252, 91 L Ed 209), the United States Supreme Court explicitly recognized this fact of constitutional law (p 240):

“The considerations that made it appropriate for the Constitution to declare that the Constitution of the United States, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land make it appropriate to recognize that the power of eminent domain, when exercised by Congress ivithin its constitutional powers, is equally supreme.” (Emphasis added.)

To consider the power of the Federal right of eminent domain to be any less than a full and supreme power would subvert the United States Constitution by enabling the constitutional powers of congress to be subordinated to the will of a State or city or even a private citizen. As stated in Kohl v. United States (1875), 91 US 367 (23 L Ed 449), this situation cannot exist (p 371):

“The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States. These are needed for forts, armories, and arsenals, for navy-yards and lighthouses, for customhouses, post-offices, and courthouses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of property-holders to sell, or by the action of a State prohibiting a sale to the Federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a State, or even upon that of a private citizen. This cannot be.” (Emphasis added.)

Focusing more specifically upon the selective process in the exercise of the power of eminent domain, the United States Supreme Court has recognized that this is a legislative function. In United States v. Carmack, supra, the Court stated that designated officials selected the site in controversy out of the 22 sites suggested, and out of 2 closely balanced alternatives. The Court concluded (p 243):

■ “It would have been within its legislative power to exclude from the consideration of its representatives this or other sites, the selection of which might interfere with local governmental functions. Such an exclusion would have been ah act of legislative policy.” (Emphasis added.)

■ The foregoing authorities in the area of the Federal-State relationship compels us to conclude that the Federal power of eminent domain is complete and cannot, absent some specific statutory limitation in the Federal act itself, be conditioned by any State or local or private rights. The Court in ..Kohl, supra, at page 374, stated:

“If the United States have the power, it must be complete in itself. It can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner. in . which it must be exercised. The ■consent of a State can never be a condition precedent to its enjoyment.” (Emphasis added.)

, .What applies to the States, under the language •of the Kohl decision, must equally apply to the local municipalities.

Turning to the Federal statute, 23 USC § 107, we note that there are some limitations imposed hy Federal law. These may be summarized as the following three requirements:

(1) The State involved must request such action;

(2) The State involved must be unable to acquire the land or unable to act with sufficient promptness; and

(3) The State involved must agree to pay 10% of the cost.

Other than these three limitations, the secretary’s decision to condemn or not to condemn is solely within his discretion.

For an understanding of the implementation of the Federal act and the workings of the Federal-State cooperation, we turn to the Code of Federal Regulations, Title 23 (revised as of January 1, 1968). Section 1.3 specifies that “Each State highway department, maintained in conformity with 23 USC § 302, shall be authorised, by the laws of the State, to make final decisions for the State in all matters relating to, and to enter into, on behalf of the State, all contracts and agreements for projects and to take such other actions on behalf of the State as may be necessary to comply with the Federal laws and regulations.”

We conclude from this particular regulation, and this conclusion is supported by the tenor of the Federal act and regulations, that the State highway department is given a role in carrying out the Federal government’s program for an interstate highway system.⁶ Part of this role is to certify to the secretary of commerce, pursuant to 23 USC § 107, the State’s inability to acquire the necessary lands where such situation exists.

Turning to the pertinent State law,⁷ we must determine whether the State highway department has the legislative authority to initiate the operative Federal mechanism of condemnation,⁸ as required by its federally designated role.

The basic authority which puts the State highway department in the road building business is Const 1963, art 7, § 16, which reads in part:

“The legislature may provide for the laying out, construction, improvement and maintenance of highways, bridges, culverts and airports by the state and by the counties and townships thereof; and may authorize counties to take charge and control of any highway within their limits for such purposes.”

As part of the implementation of the constitutional provision, the legislature enacted PA 1964, No 286,⁹ (the State highway department organization act), which abolished the office of State highway commissioner and his advisory board and transferred their powers and duties. Section 7(m) of this act (MCLA § 247.807 [Stat Ann 1969 Cum Supp §9.216(7)]) specified that one of the commission’s powers and duties was “to do anything necessary and proper to comply fully with the provisions of present or future Federal aid acts.” This Michigan statute was not only desirable but necessary to comply with the requirements of Title 23 USC, and the functioning of the State highway department in its federally designated role (see supra).

This problem of invoking the Federal condemnation procedure is not new. It has been resolved under similar circumstances in several of our sister States.

In United States v. Certain Parcels of Land in Peoria County, Illinois (SD Ill, 1962), 209 F Supp 483, the Illinois department of public works and buildings, lacking the authority to condemn property already devoted to a public use, requested the secretary of commerce to condemn county park lands under the provisions of 23 USC § 107(a).

Pursuant to that request, suit was filed by the United States. The issues before the Court were whether the department had been given specific authority by the Illinois general assembly to request that the United States condemn this municipally owned and publicly used land for highway purposes, and whether the Federal power to take the land in suit is conditioned upon a valid request by the State of Illinois through its general assembly. The trial judge in his opinion in United States v. Certain Parcels of Land in Peoria County, Illinois, supra, stated (p 486):

“Defendant would seemingly have the court ap-: proach this issue from the starting point of the limitation of State law upon the authority of the department to take the land in suit. I. reject that as the starting point. Defendant does not contend that the Federal act is not a valid exercise, by. congress- of its constitutional powers. The act, being a. valid exercise of the Federal power, is the supreme lavy of the land which cannot be limited by conflicting provisions of State law. United States v. Carmack (1946), 329 US 230, 242 (67 S Ct 252, 91 L Ed 209). In short then, we deal with a question of the Federal power of eminent domain, uninfluenced by the limitations imposed upon the Illinois department by the laws of that State if the power of the United States is properly invoked under section 107(a) of the act.”

Stressing the necessity of giving priority to the national interest and, if necessary, the subordination of local and intrastate needs to the larger national purpose, the trial judge discussed the effect of section 107(a) of 23 USC, saying (p 489) :

“Although the act relates to three separate areas of Federal-aid construction, namely, the secondary system, the primary system and the interstate system, the eminent domain provisions of section 107 (a) are restricted to the ‘interstate system.’ The obtaining of rights-of-way for the secondary and primary systems is left exclusively under State control. Thus Congress sought to insure that completion of the interstate system be not thwarted by the inability of the States, ‘for any reason’, to obtain necessary rights-of-way.”

He concluded that (p 489):

“The provision of section 107 (a) requiring a request by a State is a conditional limitation upon the Federal power of eminent domain. The act contemplates that implementation of the interstate highway program, including right-of-way acquisition, shall be accomplished by the States tó the extent possible. * * * Although the Federal power may be invoked only upon a request by a State, the required request is not to be construed as a limitation upon the power thereby invoked, but merely the means by which'exercise of the Federal power is invoked in aid of the interstate program.”

The Court then proceeded to discuss whether the Federal power of eminent domain had been validly invoked and noted that the general assembly of Illinois had authorized the department “to do all things necessary fully to carry out and make effective the cooperation contemplated and provided for by the Federal aid highway act.” (p 490.) Pursuant to this authorization, the request was made to the secretary of commerce. The Court held that the eminent domain power of the Federal government had been properly invoked.

Upon appeal, the opinion of the trial court was adopted by the United States court of appeals and affirmed. See United States v. Pleasure Driveway & Park District of Peoria, Illinois (CA 7, 1963), 314 F2d 825.

See, also, United States v. 20.53 Acres of Land in Osborne County, Kansas (D Kan, 1967), 263 F Supp 694, dealing with a similar grant of authority to the secretary of the interior as it relates to the condemnation of property owned by the State of Kansas already being put to public use; and United States v. 17.0098 Acres of Land (Lawncroft Cemetery) (ED Pa, 1967), 269 F Supp 960, for a similar holding where the United States government was asked by the ■ State of Pennsylvania to condemn Lawncroft cemetery for construction of a portion of the interstate highway system, route 95, under 23 USC § 107 (a). •

It is to be noted that the language of section 7 (m) of the State highway department organization act is substantially identical with the statutory language construed by the Illinois court, in United States v. Certain Parcels of Land in Peoria County, Illinois, supra, at p 490, “to do anything necessary and proper' to comply fully with the provisions of present or future'Federal aid acts.”

We conclude that since at least July 1, 1965,¹⁰ the State has had the constitutional (art 7, § 16) and statutory (MCLA § 247.807 [m]), authority to invoke the operative provisions of 23 USC § 107, unaided by any provision of PA 1967 (Ex Sess), No 12.

We have today upheld the constitutionality of the first 6 sections of PA 1967 (Ex Sess), No 12. Those six sections provide for arbitration of disputes involving the determination of routes for interstate highways through municipalities. Pursuant to these 6 sections, an arbitration board was appointed, hearings were had, and a route location made. The approval is designated as final and binding upon the department and the affected municipalities. The determination by the board, binding upon the department, is additional authority to invoke the operative provisions of 23 USC § 107.

Having determined that the State highway department had the authority to initiate the operative provisions of 23 USC § 107, but lacking any specific statute giving the State highway department any authority to condemn public lands, and mindful of the applicable decisions of this Court prohibiting the State from condemning public lands absent a clear legislative intent to the contrary — see Battle Creek & Sturgis R. Co. v. Tiffany (1894), 99 Mich 471; Chicago & Kalamazoo Terminal R. Co. v. Grand Rapids & Indiana R. Co. (1908), 153 Mich 686; and Warren Township School District No. 7, Macomb County v. City of Detroit (1944), 308 Mich 460 — we liold tbat tbe State highway commission has the authority to certify to the secretary of commerce the determined route and its inability to condemn public lands or its inability to act with sufficient promptness and to request the implementation of the Federal power to acquire lands for the interstate system under the provisions of 23 USC § 107.

Affirmed. No costs, a public question being involved.

T. E. Brennan, C. J., and Dethmers and T. G. Kavanagh, JJ., concurred with Black and T. M. Kavanagh, JJ.

1 When Aet 12 was enacted and these 1-696 proceedings'were instituted, section 128 subd (a) read as follows:

Ҥ 128. Public hearings

“(a) Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the secretary that it has had public hearings, or has afforded the opportunity for sueh hearings, and has considered the economic effects of sueh a location. Any State highway department which submits plans for an interstate system project shall certify to the secretary that it has had public hearings at a convenient location, or has afforded the opportunity for sueh hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of sueh highway.” Section 128 subd (a) was amended by public law 90-495, § 24, 82 Stat 828, effective August 23, 1968. It reads, at present:

“(a) Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the secretary that it has had publie hearings, or has afforded the opportunity for sueh hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. Any State highway department which submits plans for an interstate system project shall certify to the secretary that it has had public hearings at a convenient location, or has afforded the opportunity for sueh hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of such highway.”

2 Aet 12 spends its whole force in the implementation of Title 23. It deals with no way or highway excepting those eoming within the definition of highways constituting, when constructed, a part of the “Interstate System.” See '23. IJSC § 101, subd (a). The route of no intrastate highway, of Michigan, was intended to or could be affeeted or determined thereby.

3 Our judgment of affirmance, entered May 5, includes this paragraph:

“The Court’s opinion will refrain specifically from determining that the department of State highways, distinguished from action requested by Michigan and instituted by the secretary of commerce under Title 23, US Code, is empowered to condemn public property lying within the boundaries of the plaintiff municipalities.”

4 For a general textual discussion of reference statutes, their purposes and generally accepted validity, see 50 Am Jur, Statutes §§ 36, 37, 38 and 215, pj> 57, 58, 195, and 196,

6 See especially, 23 T7SC § 302(a), which specifies that:

“Any State desiring to avail itself of the provisions of this title shall have a State highway department which shall have adequate powers, and be suitably equipped and organized to discharge to the satisfaction of the secretary the duties required by this title. Among other things, the organization shall include a secondary road unit.”

7 Our analysis proceeds independent of consideration of PA 1967 (Ex Sess), No 12 (MCLA 1969 Cum Supp §§ 252.151-252.158 [Stat Ann 1969 Cum Supp §§ 9.1095(51)-9.1095(58)]).

8 We note that CFR, § 1.23(a) states that “The State shall acquire rights-of-way of such nature and extent as are adequate for the construction, operation and maintenance of a project.” This regulation deals with the normal course of events in the State’s highway building program. It is independent of 23 USC § 107 and is consonant with the tenor of both the Federal statute and the other pertinent regulations.

9 MCLA §§ 247.801-247.816 (Stat Ann 1969 Cum Supp §§9.216 [1]-9.216[16]).

10 PA 1964, No 286, was given immediate effect by the legislature and was approved by the governor on June 12, 1964. However, it contained a section 16 reading: “Sections 2, 5, 7, 8, 9, 10, 13, 14 and 15 of this aet shall take effect on July 1, 1965, or when the present state highway commissioner no longer holds his offiee, whichever occurs first.” Mr. John C. Maekie, the commissioner during 1964, resigned effective January 4, 1965, after election to represent, the seventh congressional district.