Hinchman v. City of Detroit

9 Mich. 103

• Court: Michigan Supreme Court
• Decided: November 16, 1861
• Status: Published

Opinion

Martin Ch. J.:

So far as the complainants ask for an injunction upon the ground that the vacation of a portion of Campus Martius, and the erection of a City Hall thereon, creates a nuisance, the answer having denied all the equity of the bill, and set out a state of facts wholly inconsistent with such relief, and no proofs having been exhibited, the bill was properly dismissed. But the case does not appear to have been brought into this court upon that ground solely, but also for supposed defects and irregularities in the proceedings in the Recorder’s Court; and to these the evidence is exclusively directed.

The power of vacating public grounds is lodged with the Common Council, acting through judicial proceedings in the Recorder’s Court; and these proceedings all appear to have been regularly taken. But it is claimed that the resolution of the Common Council upon which the subsequent proceedings in the Recorder’s Court were founded, was not -in compliance with the charter, and hence conferred no jurisdiction upon that court. The charter, Chap. VII, §1, provides that the Common Council shall have power to lay out, alter, vacate, &c., streets, public grounds, <fec., in said city, whenever they shall deem it a necessary public improvement, &c.; and §2 provides that, whenever they shall deem any such improvement necessary, they shall so declare by resolution, and describe the contemplated improvement, &c. It is charged and admitted that it is the purpose of the city, as soon as the premises in question are vacated, to erect upon it and an adjoining lot now owned by the city, a City Hall; and it is claimed that this is the improvement that should have been described in the resolution. We think not. The vacating of the square is, by the first section, denominated an improvement; and this construction of the word determines its signification in the second section. “Such improvement” in the second, refers to “it” in the first section. The Common Council are to determine whether an act respecting the public property is necessary — as to open streets or alleys, or vacate them, or any'public grounds — and this act is denominated an improvement; and the fact that a further design exists respecting the property, makes it none the less an improvement, nor does it require that the further design, which may or may not be an improvement in the common signification of the term, should also be described. Now it is contended that the jury inq^annelled in the Recorder’s Court are to determine the necessity of the improvement; and it will be conceded to be the grossest absurdity so to construe the law, that such jury may prevent the erection of a City Hall by holding, against the action of the whole city, that a hall is unnecessary. This shows to what absurd consequences the complainants’ doctrine, that such is really a part of the jury’s duty, leads. There is no provision in the charter imposing this duty upon the jury, except in' eases where private property is taken: in all other ‘eases it is expressly confided to. the Common Council. The language of §14 of Chap. VII is not applicable to cases of this character, nor did the Legislature ever intend it to be so, or to confer upon a jury the power, in a case like that before ns, of revision of the acts and decisions of the Common Council. When private property is taken for public use, the Constitution requires that a jury should determine the necessity for its condemnation ; and a careful consideration of § 14 will show, that it can only have reference to that contingency. But even if the amount of benefit which an adjoining owner may be supposed to have in the public square, beyond that to which every individual of the public is entitled, can be considered private property, still, in this ease, no such peculiar benefit having been shown, and all injury by the vacation 'of this portion of the square being denied, and no proofs taken to Show any injury, and the jury having negatived any damages, this case must be treated as one in which the taking of private property is not involved.

The decree of the court below is affirmed.

Christiancy J. concurred. Manning J. dissented. Campbell J. did not sit in the case.