Hendershott v. Rogers

211 N.W. 905, 237 Mich. 338, 1927 Mich. LEXIS 537

• Court: Michigan Supreme Court
• Decided: January 3, 1927
• Docket: Docket No. 140.
• Status: Published

Opinions

Clark, J.

To reduce a curve in State trunk line highway, M 50, in Jackson county, defendant, • State highway commissioner, sought to take land of plaintiff pursuant to the provisions of Act No. 852, Pub. Acts 1925, entitled “An act to provide for the purchase and condemnation of private property for public highway purposes.” Defendant determined conclusively the necessity of taking the property without giving the plaintiff notice of the purposed determination and without affording him thereon a hearing, an opportunity to defend, and in this regard defendant followed, substantially, the provisions of the act, and this feature of the act plaintiff contends is unconstitutional. There is no criticism of the machinery set up by the act for determining compensation and review thereof, but plaintiff insists that because of the peculiar language of the State Constitution, necessity, like compensation, is a judicial question and that it may not be determined without due process of law, giving the landowner notice, hearing, and opportunity to defend. Defendant’s position is that necessity is legislative, that the legislature may find it, or may delegate the power, and, the question being legislative, the landowner is not entitled thereon to notice, hearing, or opportunity to defend. Plaintiff’s bill for injunction was dismissed. He has appealed.

The power of eminent domain is inherent in sovereignty. It is in the State -without recognition in the Constitution, but its exercise is subject to any restrictions or limitations found therein. Loomis v. Hartz, 165 Mich. 662.

It was said in Mississippi & Rum River Boom Co. v. Patterson, 98 U. S. 403:

“The right of eminent domain, that is, the right to take private property for public uses, appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. The clause found in the constitutions of the several States providing for just compensation for property taken is a mere limitation upon the exercise of the right. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. But notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognisance. If that inquiry take the form of a proceeding before the courts between parties,— the owners of the land on the one side, and the company seeking the appropriation on the other, — there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of the State.”

The State Constitution of 1835 contained the following (Art. 1, § 19) :

"The property of no person shall be taken for public use'without just compensation therefor.”

This is substantially the language of the like provision of the 5th Amendment of the Federal Constitution, and of the constitutions of nearly all of the States. Such constitutional limitation of the exercise of the power of eminent domain relates to one matter, compensation. It offers no restriction respecting the determining of necessity of taking private property for public use. It is well settled that under such provision the question of compensation is judicial; but that the question of necessity is legislative and the legislature may determine it or it may delegate the power to do so. We quote from Backus v. Union Depot Co., 169 U. S. 557 (18 Sup. Ct. 445):

“In many States the question of necessity is never submitted to the jury which passes upon the question of compensation. It is either settled affirmatively by the legislature, or left to the judgment of the corporation invested with the right to take property by condemnation. The question of necessity is not _one_ of a judicial character, but rather one for determination by the lawmaking branch of the government.”

If the quoted section of our Constitution of 1835 had persisted without modification to and in our last Constitution, that of 1908, this opinion might end here in affirmance of the decree. But important changes have been made and we consider them; We quote section 2, art. 18, as amended, State Constitution of 1850:

“When private property is taken for the use or benefit of the public, the necessity for using such property and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders, residing in the vicinity of such property, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law: Provided, The foregoing provision shall in no case be construed to apply to the action of commissioners of highways in the official discharge of their duty as highway commissioners.”

And sections 1 and 2, art. 13, Const, of 1908:

“Section 1. Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law.

“Sec. 2. When private property is taken for the use or benefit of the public, the necessity for using such property and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law: Provided, That the foregoing provision shall not be construed to apply to the action of commissioners of highways or road commissioners in the official discharge of their duties.”

Section 2, art. 18, as amended, Constitution of 1850, contained two exceptions, namely, when the condemning party was either thé State or a highway commissioner. See following cases relative to the proviso of said section and referring also to other sections of said Constitution: Campau v. City of Detroit, 14 Mich. 276; People v. Highway Commissioners, 15 Mich. 346; Paul v. City of Detroit, 32 Mich. 108; Truax v. Sterling, 74 Mich. 160. But under such section including its proviso it was the duty of a highway commissioner to make determination! of both necessity and compensation. Truax v. Sterling, supra.

But section 1, art. 13, of the Constitution of 1908 is all inclusive, has no exception, and imposes both of said restrictions of necessity and compensation in every case where it is sought to take private property for public use. Section 2, art. 13, of the Constitution of 1908 provides how necessity and compensation are to be determined, requires that it be done by a jury or by commissioners, except when the State, a highway commissioner, or a road commissioner is the condemning party. With these extensions! and differences noted, it may be said that section 2, art. 18, Const. of 1850, and sections 1 and 2, art. 13, Const, of 1908, are in principle substantially the same. Loomis v. Hartz, supra.

For convenience we quote again the section from our Constitution of 1835:

“The property of no person shall be taken for public use without just compensation therefor.”

The change in the later Constitutions from the provisions of the Constitution of 1835, here important, is, in substance, the addition of the words “without the necessity therefor being first determined.” Defendant says that, notwithstanding the added words, the question of necessity remains purely legislative. If so, why add the words at all? Under the provision of the Constitution, quoted above, of 1835, and like provisions, in the Federal Constitution and in many State constitutions, it was well settled that necessity was a question for legislative determination. If the makers of our later Constitutions intended no change in that regard they would not have added the words. They did not intend an idle thing. They added the words to make necessity, like compensation, a judicial question, in respect of which there should be due process of law, notice thereof to the landowner, hearing, and opportunity to defend, as well upon the question of necessity as upon the question of compensation.

We quote from Paul v. City of Detroit, 32 Mich. 108:

“But in all eases, whether private property is to pay damages or not, the necessity of the use, and the compensation for the property taken, must be found by the jury, and no legislative or municipal authority can determine either. It is made by the Constitution a purely! judicial inquiry, to be made by a jury of twelve freeholders, and determined by their unbiased and impartial verdict.”

And see People v. Village of Brighton, 20 Mich. 57; Ayers v. Richards, 38 Mich. 214; Campau v. City of Detroit, 14 Mich. 276; Horton v. City of Grand Haven, 24 Mich. 465; Village of Hamtramck v. Simons, 201 Mich. 458.

We quote again Mr. Justice Campbell in the Paul Case:

“This provision is not found in constitutions generally, and was never known in Michigan until the adoption of the Constitution of 1850. Before that, neither jury nor commissioners, had any duty to perform except assessing damages, and the prerogative of taking property om their own estimate of its necessity was exercised by legislatures or those persons or corporations whom they allowed to act in the matter.

“The change was made from a well founded belief, founded on experience, that private property was often taken improperly and without any necessity, and that the pretense of public utility was often a cloak for private aggrandizement. Ways were forced through private property to enrich the owners of other property, who were enabled by intrigues and sinister influences to induce municipal bodies to use the public authority to subserve their private schemes. The system was abused to the oppression of individuals by corruption and bargaining, and the sacredness of private property, and its immunity from any interference not required by actual public exigencies, ceased to be respected.”

The writer of the text in 20 C. J. pp. 624-626, recognizes that in Michigan the question of necessity is judicial, not legislative. We quote:

“In the absence of some constitutional or statutory provision to the contrary, where the use for which property is sought to be taken under the power of eminent domain is public, the necessity and expediency of exercising the power are political and not judicial questions. The legislative determination is conclusive and not reviewable by the courts. This power is unqualified, other than by the necessity of providing that compensation shall be made, and when the power has been delegated it is a subject of legislative discretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority. So also the extent to which property shall be taken for public use rests wholly in the legislative discretion, subject to the limitation that due compensation be made. The legislature may determine the amount of land necessary to be taken and the location. It may designate the particular property to be condemned, and its determination in this respect cannot be reviewed by the courts. Nevertheless, under some constitutional provisions, the question of necessity is a judicial one to be determined by the courts and not by the legislature”

To the words which we have italicized is a foot-note citing many Michigan cases, some of which are cited above.

In 4 McQuillin on Municipal Corporations, § 1467, it is said:

“The question of necessity is distinct from the question of public use, and the former question is exclusively for the legislature, except that if the constitution or statute authorizes the taking of property only in cases of necessity then the necessity becomes a judicial question.”

And, again, cases from Michigan are cited in a footnote.

In a note, 22 L. R. A. (N. S.) 69, the author, after reviewing decisions of many courts to the effect that the legislature is the judge of necessity and may determine the question without interference from the courts, says (we quote a part of the review of Michigan cases):

“All that has been said as to the judge of the necessity of appropriating private property to public use is predicated of the absence of interfering constitutional provisions. By the constitution, of course, the legislature itself may be shorn of its power to decide the question of necessity in exercising the right of eminent domain, and the power may be lodged with any tribunal or body. When such is the case, the decisions just cited will either not apply, or will be applicable only to a modified extent.

“The Constitution of Michigan, for example, explicitly requires (Art. 18, § 2) that, when private property is taken for the use or benefit of the public, the necessity for talcing it shall be ascertained either by a jury or by commissioners appointed by a court of record. Kundinger v. City of Saginaw, 59 Mich. 355.

“The Michigan Constitution, it was said, in Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456, allows proceedings to condemn land to be conducted by highway commissioners, in some cases, and by specially appointed commissioners or juries of freeholders, in others; and the inquiry in that State, as elsewhere, is an appraisal or estimate of values, and not a contest on litigious rights, but it includes what is not elsewhere included, an inquiry into the necessity of the proposed taking for public purposes, which was never made by courts, but always heretofore by the legislature or some body, not judicial, of its creation. Had it not been for the specific provisions in the Michigan Constitution, the State could have provided for these inquiries to be made through any medium, it chose to select.

“This provision, according to the court in Paul v. City of Detroit, 32 Mich. 108, is not found in constitutions generally, and was never known in Michigan until the adoption of the Constitution of 1850. Before that, neither jury nor commissioners had any duty to perform except assessing damages, and the prerogative of taking property on their own estimate of its necessity was exercised by legislatures, or those persons or corporations whom they allowed to act in the matter.

“The determination of the necessity of taking private property for the public use, it was said, in substance, by thé court, in Powers’ Appeal, 29 Mich. 504, has sometimes been allowed to be made by legislative or other public agencies. But the Michigan Constitution has taken away this power from all- bodies except those indicated; and, in cases like the present (extension of city streets through private property), the fact of necessity must be found by the jury. The common council, instead of acting judicially or finally on the policy of opening a street over private property which they cannot obtain without adverse proceedings, become no more than petitioners, and the decision rests with the jury, and not with the city.”

See 1 Elliott on Roads and Streets (4th Ed.), § 213.

Defendant argues that the last words of section 1, art. 13, “in such manner as shall be prescribed by law” ought to save the statute in question because it is the manner prescribed by law. May the legislature prescribe any manner? If it may treat necessity as a legislative question and deny to the landowner on that question notice, hearing, and opportunity to defend, may it not treat the question of compensation in a like manner? And if such an act were passed and approved, could it be sustained because it was the “manner prescribed by law?” The words in question are restricted by the preceding language of the section. A statute providing for condemnation of private property for public use must give the landowner notice, hearing, and opportunity to defend on both questions, necessity and compensation.

The State highway commissioner is a highway or road commissioner, and because of the proviso of section 2, art. IS, of the Constitution, quoted above, he may condemn private property for public highway purposes without a jury or the commissioners required in the main part of said section, but any such proceeding taken by him must be in recognition of said section 1 of article 13, must treat both necessity and compensation as judicial questions, and must accord to the landowner on both questions due process of law. An approved definition of due process of law is law in its regular course of administration through the courts of justice. See Weimer v. Bunbury, 30 Mich. 201.

“ ‘Due process of law,’ is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty, or property, whether the proceeding be judicial, administrative, or executive in its nature. This> great guaranty is always and everywhere present to protect the citizen against arbitrary interference with these sacred rights.” 2 Lewis on Eminent Domain (3d Ed.), § 566.

“It is a fundamental principle of the common law that when a person is entitled to a hearing upon any question affecting his interests, he is entitled to notice of when the hearing is to take place, so that he may be given a reasonable opportunity to present his side of the question, and, when such a hearing is a constitutional right, notice of the hearing is essential to due process of law.” 2 Nichols on Eminent Domain (2d Ed.), § 336.

For many years in this State, an appeal to the township board from the action of a township highway commissioner in determining necessity and compensation for taking property for public highway purposes was permitted, and the decision of the board was made final, and this was sustained by the courts, although, as pointed out by Mr. Justice Stone in Loomis v. Hartz, supra, with citation of cases, the constitutionality of such statute, as regards due process of law, was neither raised nor considered.

Strictly speaking, with regard to judicial questions and under our present Constitution:

“Unless there is a tribunal of a judicial character, there eannot be due process of law under the 14th Amendment to the Federal Constitution, nor within the meaning of State constitutions when justly construed.” * * * 1 Elliott on Roads and Streets (4th Ed.), § 315, note 16.

“A day in court is a matter of right in judicial proceedings.” Mr. Justice Cooley in Weimer v. Bunbury, supra.

Due process of law, “when used in relation to those (proceedings) of a judicial character, it is evidently, and has been so universally held, intended to secure to the citizen the right to a trial according to the forms of law of the questions of his liability and responsibility, before his person or his property shall be condemned. Judicial action is in such cases imperatively required, and ‘implies and includes actor, reus, judex— regular allegations, opportunity to answer, and trial according to some settled course of judicial proceedings.’” Parsons v. Russell, 11 Mich. 113 (83 Am. Dec. 728).

See 20 C. J. p. 886.

“Thus an attempt by the legislature to authorize the performance of a judicial function by an administra tive board would result in depriving the persons', affected by the orders of such board of their fundamental right to a hearing by a judicial tribunal and would thus not constitute due process of law.” 2 Nichols on Eminent Domain (2d Ed.), § 329.

The State 'highway commissioner is authorized in the first instance to determine necessity and compensation, but at some stage of the proceeding an aggrieved landowner must be given his right to “his day in court.”

That the proviso of section 2, art. 13, dispenses with a jury or the commissioners and permits in highway cases the commissioner to hear and determine the questions takes nothing from section 1 of art. 13. He is bound by it as are all other condemning parties. If our present Constitution had been silent on the question of necessity, if we still retained the provision of our Constitution of 1835, necessity would have been determined, practically, as it was in the case at bar. But under our present Constitution, an ex parte determination of necessity is as’ fruitless as would be an ex parte determination of compensation.

That this court held, long ago, that necessity was, in this State, a judicial, not a legislative, question, was not that the courts sought additional labors and powers, but that obedience to the mandate of a sovereign people expressed in their Constitution was imperative. That the State highway commissioner may be hindered by this constitutional provision in his efforts to correct and improve public highways is a matter for the people themselves. But it should be observed that the changes in our later Constitutions, from that of 1835 (above set forth), made by the people, were for the very purpose of increasing the rights of the landowner whose property it is proposed to take, and to the extent that the landowner’s rights were increased, to that extent those who seek to take his property; are hindered.

It follows that Act No. 352, Pub. Acts 1925, in so far as it denies to the landowner due process of law as regards the question of necessity, fails to accord to him on that question, notice, hearing, an opportunity to defend, is unconstitutional and void. No other question requires discussion.

Decree reversed. Plaintiff may have decree to be settled'in the usual manner. The question is one of public moment, so no costs are allowed.

Sharpe, C. J., and Bird, Steere, Wiest, and McDonald, JJ., concurred with Clark, J.