Board of Health of Portage Tp. v. Van Hoesen

• Decision Date: 09 October 1891
• Citation: 87 Mich. 533,49 N.W. 894
• Court: Michigan Supreme Court
• Parties: BOARD OF HEALTH OF TOWNSHIP OF PORTAGE v. VAN HOESEN.

49 N.W. 894

87 Mich. 533

BOARD OF HEALTH OF TOWNSHIP OF PORTAGE v. VAN HOESEN.

Supreme Court of Michigan

October 9, 1891

Certiorari to circuit court, Kalamazoo county GEORGE M. BUCK, Judge.

Proceedings to condemn land by the board of health of township of Portage against Jacob Van Hoesen. Petition granted. Respondent obtained a writ of certiorari. Petition dismissed.

Osborn & Mills and T. R. Sherwood, for petitioner.

Howard & Roos, for respondent.

MCGRATH J.

This matter comes here by certiorari, to test the validity of certain proceedings to condemn land for cemetery purposes. The board of health of Portage township filed a petition in the circuit court for the county of Kalamazoo, under chapter 181, How. St., to condemn certain land belonging to respondent, for cemetery purposes. Respondent demurred to said petition, alleging, among others, the following grounds: "That said petition is insufficient to confer upon said court jurisdiction of the subject-matter of said petition, (1) for the reason that the statutes confer no authority upon said court to summon a jury in cases of the kind alleged and set forth in said petition; (2) for the reason that it appears by said petition that said cemetery which it is proposed to enlarge is not owned by a corporation organized to establish a rural cemetery, and provide for the care and maintenance thereof." Chapter 39, How. St., makes it the duty of the township board of health to provide and maintain burial grounds, but contains no provisions for the condemnation of land for cemetery purposes. In 1869 the legislature passed an act entitled "An act to authorize and encourage the formation of corporations to establish rural cemeteries, and provide for the care and maintenance thereof." This act contained no provision for the acquirement of lands, except by purchase or gift. It provided for the formation of stock companies for the purpose of establishing and maintaining cemeteries. That the articles should contain a statement of the amount of land to be purchased, and of the amount of capital necessary to make the purchase and improve the grounds. It provided for the issue of scrip or certificates of stock to the subscribers. That such scrip should be personal property, and transferable by the holder. It empowered the board of trustees to purchase land for the use of such association; to levy assessments upon subscribers to the articles of association, not exceeding the amount subscribed; to dispose of the rights of burial, fix the prices thereof, make conditions in relation to the burials within the cemetery grounds, and guaranty to the grantees burial rights, and the care and preservation of the grounds; to establish such rules and regulations for the control and management of the grounds, and all matters and things incident thereto, as they shall deem for the best interests of the corporation; to sell any part or portion of the land owned by such corporation, in case the same shall not be occupied or required for burial purposes, or for the use of burial rights; and to prescribe from time to time any interest or dividends which shall be paid to the holders of the scrip. It provides for the reservation out of the proceeds of sale of burial rights of an amount which, in the opinion of the board of trustees, shall be sufficient to create a fund which, when invested, shall produce an income sufficiently large to meet the expense of keeping the grounds in good condition. It further provides that all grants of rights of burial shall be transferable only upon compliance with such conditions as shall be prescribed by the board of trustees. In 1875 the last-named act was amended by adding 10 new sections, (How. St. Mich. � 4778,) providing that, "whenever the board of directors of said corporation, the board of health of any townhip, or the common council, board of health, or board of trustees of any city or village, shall deem it to be desirable and necessary to enlarge the limits of any cemetery which has been or may be hereafter established," application may be made to a circuit judge for a jury, to ascertain and determine the compensation to be made, and the necessity for using the same; and, after providing for the summoning of a jury, notice to the owners, a hearing and a determination by said jury, the amending act provides that judgment shall be rendered by the court for the amounts found by the jury, and, upon proof of payment of such amounts, the court "shall by an order or decree adjudge that the title in fee of such real estate shall forever thereafter be vested in such board of directors, board of health," etc.

The contention of respondent is that there is no valid statute which authorizes or permits the condemnation of private property for the enlargement of this cemetery; that the act of 1869 authorized the formation of corporations to establish rural cemeteries, and provided for the care and maintenance of rural cemeteries so established, and only such as are so established. In my judgment, although the point is not made in the briefs, the amendment of 1875 is, as applicable to rural cemeteries established by corporations formed under the act of 1869, unconstitutional and void, as it attempts to invoke the exercise of the power of eminent domain for the condemnation of lands, at the instigation of a private corporation, for private uses. Eminent domain is that sovereign power vested in the people by which they can, for any public purpose, take possession of the property of any individual upon a just compensation paid to him. 6 Amer. &amp Eng. Enc. Law, 511; 2 Kent, Comm. 339. It has been defined by this court to be "the rightful authority which exists in the sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, and welfare may demand. Trombley v. Humphrey, 23 Mich. 471-474. It was held in that case that the state had no authority by virtue of its eminent domain to condemn lands for the purpose of turning them over to the United States for the erection and maintenance of light-houses; that the act which undertook to authorize the government to do this was unconstitutional, as appropriating property of individuals without due process of law; and that the right of eminent domain in any sovereighty exists only for its own purposes. In Ryerson v. Brown, 35 Mich. 333, the court say that, in authorizing condemnation proceedings, it is essential that the statute should require the use to be public in fact; in other words, that it should contain provisions entitling the public to accommodation; that property can never be condemned for private improvements, except where they belong to a class that cannot usually exist without the exercise of that power, and where the public welfare requires that they shall be encouraged. The exercise of the right of eminent domain is limited to cases in which the public have an interest. Cody v. Rider, (Ky.) 1 S.W. 2. It can never be just to take property under pretense of public benefit which is not needed by the public, however much it may advance the interests in which the public have no concern. Paul v. Detroit, 32 Mich. 108-119. The state has no right to take the property of one citizen, and give it to another, whether with or without compensation. 2 Washb. Real Prop. 539; Tied. Lim. Police Powers, � 121 b, 390. As has been said, "when one man wants the property of another, the legislature will not aid him in the acquisition." Taylor v. Porter, 4 Hill, 147. See Wilkinson v. Leland, 2 Pet. 658; Hey ward v. May or, 7 N.Y. 324. It was held in People v. Salem, 20 Mich. 454, that a legislative act originating proceedings by or in pursuance of which individual property was to be taken, under the forms of taxation, for the benefit of a private corporation, could not be justified as an exercise of legislative power. It was not, therefore, due process of law. Mr. Cooley says: "The public use implies a possession, occupation, and enjoyment of the land by the public at large, or by public agencies; and the due protection to the rights of private property will preclude the...