Balch v. City of Detroit

• Decision Date: 12 May 1896
• Citation: 109 Mich. 253,67 N.W. 122
• Court: Michigan Supreme Court
• Parties: BALCH ET AL. v. CITY OF DETROIT ET AL.

67 N.W. 122

109 Mich. 253

BALCH ET AL. v. CITY OF DETROIT ET AL.

Supreme Court of Michigan

May 12, 1896

Certiorari to circuit court, Wayne county; Robert E. Frazer, Judge.

Application by George W. Balch and others against the city of Detroit and others to compel the payment of an award for land condemned in proceedings to open a street. An order to show cause was issued, and, after a hearing, the writ of mandamus was refused, and applicants bring certiorari. Writ of mandamus awarded.

Gray & Gray (Edwin F. Conely, of counsel), for relators.

John J Speed and Charles D. Joslyn, for respondents.

HOOKER J.

Previous to 1895, the right to institute proceedings for taking private property for street and highway purposes, on behalf of the public, was vested in city councils and boards of supervisors, under a general law, viz. Act No. 124 of the Public Acts of 1883, and an amendatory act, numbered 48 of the Laws of 1887. At its 1895 session, the legislature passed an act, applicable only to the city of Detroit, which, while in the main it followed the provisions of the pre-existing general law, differed from it in important particulars. See Local Acts 1895, Act No. 467. Its first section provided that all proceedings to take private property, on the part of the city of Detroit, should be held and prosecuted under the provisions of said act; and its last section repealed all acts and parts of acts in conflict therewith. It contained no saving clause whereby the procedure in pending causes was pointed out. This act was passed June 4, and took effect on September 1, 1895, and was considered in the case of City of Detroit v. Chapin (Mich.) 66 N.W. 587, where it was held that it terminated a proceeding commenced three days before it took effect, and which had not been submitted to a jury. We have now before us a case where a verdict was rendered in such a proceeding on February 2, 1895, and in which a judgment of confirmation was entered on February 19 1895, from which neither party appealed. The council took no steps to provide for the payment of the sum awarded by the jury, and has not sought to take possession of the land. It now claims that the award was excessive, and that there is no law under which it can raise the necessary fund to pay it. With the first question we have nothing to do, the verdict and judgment of confirmation being made final by section 11 Act No. 124, Pub. Acts 1883. Counsel for relator asks a mandamus directing that the common council pay the award, from funds now in its hands, or, if that cannot be done, it provide, in the next annual tax levy, a sum sufficient for the purpose, and pay the same to the relator as soon as it shall be collected. In the circuit court the writ was denied, and the proceeding is before us upon certiorari.

It is contended upon relators' behalf that the confirmation of the award gave him a vested right to the compensation although the title or right to use the land could not vest in the public until payment should be made. Such was the view taken under the statute of New York in the case of People v. Common Council of City of Syracuse, 78 N.Y. 60, where it is stated that the English rule is much more favorable to property owners, and that the municipality is bound from the time of the statutory notice of an intention to condemn. The case cited holds that after the confirmation, and expiration of the statutory period, without appeal, the award became binding and conclusive upon both parties, and that the relator then had a legal right to compel the performance of the duties enjoined by the statute upon the common council, for the assessment and collection of the amount awarded, under the statute. Such, we think, is the effect of our own statute. Pub. Acts 1883, No. 124, � 11. It seems to be conceded that...