Morseman v. City of Ionia

32 Mich. 283, 1875 Mich. LEXIS 179

• Court: Michigan Supreme Court
• Decided: June 18, 1875
• Status: Published

Opinion

Pee. Cukiam:

This was a proceeding on the part of the city to condemn land for a street. The charter of the city authorizes tbe common council when a street is to be laid ont, to pur-cliaso the right of way of the owners, if the parties can agree upon the price; and in case they cannot agree it is provided that it shall bo lawful for any justice of the peace of said city to issue a venire to summon a jury of freeholders to pass upon the necessity of using the grounds or premises, and to assess the value. The charter thus makes the power of the justice to issue the venire depend upon the failure of the parties to agree upon the- price; and whether there has been such failure or not, is not a fact the justice can take judicial notice of, but is one to be proved or shown to him, in such form as to be matter of record in his office. It is an essential prerequisite to his right to issue the venire, and cannot be presumed. It is a step in that class of proceedings in which the authority to act must affirmatively appear. It seems from the record before us, that the justice in the present case proceeded to issue a venire without any evidence whatever of an attempt to agree upon the price of the land sought to be condemned. At all events, the return fails to show "any thing of the kind, and this we must consider as equivalent to a return that no •such showing was made to the justice.

The proceedings must be quashed.