In re Appeals of Powers
| Decision Date | 14 July 1874 |
| Citation | 29 Mich. 504 |
| Parties | In the matter of the appeals of William T. Powers and others |
| Court | Michigan Supreme Court |
Heard May 8, 1874
Appeal from Recorder's Court of Grand Rapids.
Proceedings to condemn property for streets, etc. The owners appeal. Proceedings quashed.
Four separate appeals of different parties were heard upon one argument.
Judgment entered on each appeal, for quashing the entire proceedings, with costs.
Champlin Butterfield & Fitzgerald and Norris, Blair & Kingsley, for the appellants.
J. W Ransom, for the city of Grand Rapids.
Proceedings were taken to continue Kent street, in the city of Grand Rapids, through certain private property, and to assess the cost of the same upon property benefited by the alleged improvement. After one jury had reported, the report was set aside, and a further jury was summoned, upon whose final action, as affirmed by the recorder's court, the present appeals are brought, involving questions of regularity and of jurisdiction. The steps complained of were taken under title six of the amended charter of Grand Rapids, as revised in 1871.--Laws of 1871, Vol. 2, p. 383, et seq.
The course to be taken is quite minutely set forth, and, inasmuch as the proceedings are special and adverse, whereby private property is taken against the will of the owner, the settled principles of law require strict compliance with every provision which is not so purely formal as in no way to bear upon the protection or rights of the parties to be affected. And, inasmuch as by the same course of proceedings, the value of the land is determined, and the cost of the improvement is levied against the parties to be charged, the inquiry involves not only those principles governing the assumption of private property for public use, but also those bearing on assessments to apportion public burdens on the persons or property liable to pay them. The questions are more complex, and the difficulties are multiplied by this condition of things.
When an application has been made in due form of law to the recorder's court, and legal notice has been given to the persons entitled to be heard, the order of the court, setting aside the report of a jury, does not under the language of the charter make it necessary to begin over again from the beginning, but allows an application for a new jury, and declares that "it shall not be necessary, on such or any subsequent application, to give notice thereof, or of the original resolution upon which the first application was based."
It follows, of course, that the consequences of any legal error before the appointment of the first jury, must attach to and effect all subsequent steps in the proceeding.
It will be necessary, therefore, to state briefly the steps to be taken in the beginning. These are:
First. A resolution of the common council declaring the necessity of the improvement, and describing that and the property to be taken, and declaring that they will, on a day named, apply to the recorder's court for a jury "to ascertain the necessity for using the property intended to be taken, if it be intended to take any, for such improvement, to ascertain the just damages which any person may be entitled to if such intended improvement be made, and to apportion and assess such damages and compensation to and upon all lots, premises and subdivisions thereof which will be benefited by such improvement."--Sec. 2.
Second. Notice of such application by causing a certified copy "to be published for four successive weeks in some daily newspaper published in said city."
Third. Notice to be served on each owner by the marshal, personally or at his residence, if in the city, or, if not, then on the occupants if known and residents, and if un known, then by posting on the premises. The marshal is required to "make return of his doings, and of the manner of giving said notice, as soon as practicable" after the passage of the resolutions, "which return shall be made to the recorder's court at least six days before the day appointed in said resolution for the hearing of said application."--Sec. 3.
Fourth. On that day, or subsequently, on filing an affidavit of the publication of the resolution, the marshal is to "attend said court and write down the names of twenty-four disinterested freeholders residing in said city, and who shall be approved by the court as such disinterested free-holders and residents and qualified to serve."
Fifth. The court issues to the marshal a summons for the jurors to appear at a time not less than seven days thereafter, and the marshal is to serve it "at least three days before the return day thereof," and make return as on a venire.
Sixth. Provision is made for drawing from that number, and for talesmen when necessary. They are to be "sworn to discharge the duties imposed on them by this title, faithfully, impartially, and according to the best of their abilities." The court instructs them, and they then proceed in their work.
These are the chief outlines of the procedure. The statute directs the Supreme Court to dispose of these appeals with the least practicable delay; and inasmuch as there may be errors which vitiate the entire proceedings, and others which could be rectified by a new inquest, it becomes necessary to dispose of substantial and jurisdictional questions, and not to confine our attention entirely to those of less consequence.
As the right to assess the cost of the improvement depends directly on the legality of the steps to condemn the land, all questions relating to that belong to each of the appeals. And the first question naturally presented refers to the jurisdiction of the recorder's court. This cannot attach without legal proof of legal notice to the parties entitled to be heard.
The statute is positive that the marshal shall "make return of his doings, and of the manner of giving said notice, as soon as practicable after the passage thereof" [that is, of the resolution], "which return shall be made to the recorder's court, at least six days before the day appointed in said resolution for the hearing of said application." A distinction is also taken between the personal notice, which is to be given by the common council, and not by the marshal.--Sec. 3. This distinction becomes important under the objections presented on the record.
The choice of the daily paper in which the resolution is to be published must necessarily be made by those who are appointed to give that notice. It is always a matter of importance to select a paper which will be adapted to give the widest currency to such a notice, which concerns the whole city, inasmuch as the city may become liable to pay at least a part of the damages.--Sec. 12. There is only one way in which a common council can act, and that is by written resolution. We think the paper should have been designated; and if it had been, the minor question whether it sufficiently appeared the paper in which the notice was printed was within the statute, could not very well have arisen. The printed notice was not authorized, and was invalid.
We think, also, that as the return is required to be made by the marshal at least six days before the day appointed for hearing, the law precludes the right to give any notice which should be included in his return, unless it be given before that time. There are no circumstances which could authorize a notice later than six clear days before the day of hearing. Such language is imperative, and the service is necessary to give jurisdiction.--Sallee v. Ireland, 9 Mich. 154.
The marshal returns that a part of the premises being unoccupied, and the owner a non-resident, he posted a notice on that lot upon the 10th day of October, which was less than six days before the 14th (the day of hearing), and this notice was therefore void.
The recorder's court got no jurisdiction, and all the proceedings therein were void from the beginning.
But there were some other more vital questions raised, which we feel bound to notice, under the statute, as they stand directly in the way of any further proceeding under the amended charter, if they are well taken.
It is claimed that the charter is framed so ambiguously that the jury are not required to determine upon the necessity of the proposed improvement, but only on the necessity of taking the land for the improvement, provided the improvement is made as designated. It was held in People ex rel. Bingham v Village of Brighton, 20 Mich. 57, that the jury is not called upon merely to determine whether a particular piece of land is necessary to an improvement already designated by some one else, for that would be an idle ceremony, and the fact could be determined by measurement, and involve no important discretion. The object of the constitutional provision is to prevent the taking of private property for any purpose which is not shown to the...
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