In Re Petition of Hendricks to Vacate Street

232 N.W. 350, 251 Mich. 336

• Court: Michigan Supreme Court
• Decided: October 7, 1929
• Docket: Docket No. 12, Calendar No. 34,181.
• Status: Published

Opinions

ON REHEARING. Our former opinion in this case is reported in 248 Mich. 124. This opinion is on rehearing.

Does the following provision in the charter of the city of Grand Rapids render the rule we announced inapplicable? The charter provides:

"The city commission shall not possess the power to give away, surrender or relinquish the control of any street, lane, alley, court, public square or place or create any permanent use thereof for any other purpose than for street or public uses, except by regular vacation proceedings in a proper court of record."

In the brief of counsel for petitioner, presented at the former hearing, the mention of the charter was the following:

"There can be no question about the jurisdiction of the circuit court to consider the petition to vacate Lyon street. That court is the only authority to vacate a street in the city of Grand Rapids. The charter confers no such authority on the commission, and the city attorney conceded the circuit court alone had such authority."

Had counsel cited and quoted the charter provision and argued the point now presented it would have been mentioned in and covered by the opinion. It will, however, be now considered.

Power of the commission, as representative of the municipal legislative authority over streets, is by virtue of the Constitution and statutes and not the charter. The charter may abridge the exercise of power by the commission, and, as in this instance, provide for court review. Reasonable control of streets is reserved to cities by the Constitution. Article 8, § 28. The power so vested is subject only to the limitation of reasonableness in its exercise. The control so vested cannot be delegated to a court of record by city charter provision. Even the legislature may not interfere with such reasonable control.People v. McGraw, 184 Mich. 233; In re Petition of Hawkins,244 Mich. 681. We should, if possible, give the charter provision construction in accord with the Constitution. If the charter provision be held to vest the court with plenary power to vacate city streets, then it is a delegation of power vested in the municipality by the Constitution and void. If the provision be held to preserve streets from inconsiderate action by send-in to a court the question of whether a vacation, desired by the commission, is reasonable, then it is valid. If the desire of the commission to vacate a street must pass judicial test of its reasonableness, then it stands to reason that the desire of the commission not to have a street vacated is to be respected, unless adjudged unreasonable. In either event judicial power is exercised in review only; in the one instance to review and sanction or deny inchoate action by the commission; in the other to review action by the commission against vacation and determine whether unreasonable. Charter restraint upon municipal legislative power to vacate streets does not result in depriving the legislative power of taking action to preserve streets. Under the charter provision mentioned, the city commission, if desirous of vacating a street, would have to so resolve of record before making application to the court and the court would not grant vacation unless found reasonable. The commission have a voice in preserving streets, and if they resolve to preserve the court may not interfere therewith, unless it be made to appear that such attitude is unreasonable. The reasonable control, vested in the city, is not divested by the mentioned charter abridgment of the power to vacate, for such is but an added precaution of control requiring not only action by the commission but as well an adjudication by the court in sanction thereof.

But it is contended that the circuit judge did not pass upon the evidence. We find in the opinion of the circuit judge the following:

"The right of all cities to the reasonable control of their streets being reserved to such cities, and the city commission of the city of Grand Rapids having considered the application of the petitioner for the vacation of that part of Lyon street in question here, and having decided adversely to the petitioner and refused to vacate that portion of Lyon street, and objections having been filed by the city in the present case, wherein the city insists that the maintenance of this street from Campau avenue to the river is necessary for public use, and it appearing that these objections by the city are not fanciful, visionary, or shadowy objections, it follows that this court has no jurisdiction over the matter of vacating the street as prayed in the petition herein."

The circuit judge accepted the view that the proceeding in court was in review of negative action by the commission and made the affirmative finding we have mentioned, and, there being evidence in support of the finding, we may not, upon certiorari, make other determination.

Without repeating what we said in the former opinion, we again hold that, under the Constitution and statutes, power to vacate or to preserve city streets rests with the legislative authority of the municipality, and a court has power of review only, except, under the mentioned charter provision, the commission may not vacate a street without judicial sanction.

Affirmed, with costs.