Campau v. City of Detroit

• Decision Date: 01 May 1866
• Citation: 14 Mich. 276
• Court: Michigan Supreme Court
• Parties: Alexander T. Campau v. The City of Detroit

14 Mich. 276

Alexander T. Campau v. The City of Detroit

Supreme Court of Michigan

May 1, 1866

Heard April 25, 1866 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

This was a common law certiorari to the recorder's court of Detroit, to remove the proceedings connected with the opening and extending of Russell street, in the city of Detroit, to this court.

The following facts were agreed upon, as being the only ones necessary to present the questions to be raised:

The plaintiff is one of the heirs of Joseph Campau, deceased, the owners in fee of the property. The other heirs have declined to join in the writ, and it is prosecuted by him individually.

On the 8th of August, 1865, the common council passed a resolution in the words following, to wit:

"Russell Street.--Resolution for opening and extending Russell street.

"Be it resolved by the common council of the city of Detroit, state of Michigan, that it is necessary to make the following public improvement, to wit: To open and extend Russell street, in the sixth ward of said city, northerly from its present northerly terminus, until it reaches the northerly limits of said city.

"And the said common council do hereby declare, that they intend to take and use for the purpose of making said improvement, all that part of fractional section thirty-two, town one, south of range twelve east, lying southerly of the northerly limits of the said city of Detroit, and embraced within the easterly and westerly lines of Russell street, if the same be extended from its present terminus on a course north, twenty-six degrees west, sixty feet wide.

"And the said common council do further declare, that they will, on the third Monday in the month of September, in the year of our Lord one thousand eight hundred and sixty-five, at the hour of nine o'clock in the forenoon of that day, apply to the recorder's court, at the court room of said court in said city, for the drawing and impaneling of a jury to ascertain the necessity for using the property above described, as intended to be taken and used for the purpose of making said improvement, and to ascertain the just damages and compensation to which any person may be entitled if said improvement be made.

"And the city clerk of said city is hereby directed to cause this resolution to be published for four successive weeks before said third Monday of September, A. D. 1865, in The Detroit Daily Free Press, the official daily newspaper of said city, and the Detroit Daily Advertiser and Tribune, another daily newspaper published in said city. And the superintendent of police of said city is hereby directed, by himself, or by one of the captains or sergeants of police under his direction, to serve notices of this resolution on the persons, and in the manner prescribed in section three, of chapter seven, of the charter of said city."

The resolution was adopted August 8th, 1865, and approved August 15th, 1865.

This resolution was published in the newspapers, and for the period required by the charter.

The time for appearing in the recorder's court and drawing the jury was fixed for the third Monday of September, 1865, being the 18th day of the month. As it appears by the return of the sergeant of police, the notices were served upon the persons who were described as the heirs of said Joseph Campau; on some, on the seventh, on some, on the eighth, and on some (including the plaintiff) on the ninth day of September, 1865.

The names of twenty-four freeholders were written down, as qualified to serve as jurymen, and were approved by the court, and from these, twelve jurymen were selected and sworn, and acted.

The proceedings in the recorder's court are entitled, "In the matter of opening Russell street." The damages found by the jury therein acting, as aforesaid, being in amount $ 107, were tendered to said heirs respectively.

The report of the jury was filed on the second day of December, 1865, and was confirmed by said recorder's court.

Proceedings affirmed.

T. Romeyn, for plaintiff in error:

The court, on the return of this writ, has full power to review all legal questions decided by the inferior tribunal which affects rights of property. It is not confined to questions of jurisdiction: 9 Mich. 111.

The plaintiff in error has not appeared in the proceedings. He has done nothing to waive his right to object to the jurisdiction of the recorder's court, or the constitutionality of its mode of procedure.

1. The proceedings in the recorder's court were void, for the want of the requisite resolution of the common council, and for the corresponding defect in the published notice: Charter, §§ 2 and 3, ch. 7.

There was no resolution to apportion and assess the damages. This is a fundamental and jurisdictional defect. The resolution was the foundation of the jurisdiction of the court, and if it were substantially defective, the court never acquired jurisdiction, and the proceedings are void: 2 Doug. Mich., 506, and cases there cited; 12 N. Y., 575.

2. This is a special proceeding, not according to the course of the common law, and the mode of exercising the jurisdiction, as prescribed by the statute, must be substantially pursued, or the court loses its authority to act, although it might have once acquired jurisdiction over the subject matter.

The notice was not served until the ninth day of September. The law requires it to be done as soon as practicable: Sec. 3 of chapter 7. No reason for this delay is shown.

3. There is no law authorizing the assessment of the damages by a jury of twelve persons. It will not be denied that the right to take private property for public uses can be exercised only by the legislature, and in such mode as the legislative authority may prescribe: 2 Kent's Com., 339, 340, and notes.

The charter of the city provided for this being done by a jury of twelve persons, in regard to opening streets: Chapter VII, L. of 1857, p. 119.

The legislature having provided this specific mode, saw fit in 1865 to alter it, substituting six jurors for twelve, and declaring that "all acts and parts of acts inconsistent with the provisions of this act are repealed:" L. of 1865, p. 680 to 683.

4. Conceding, for the present, that the legislature had no right (under sec. 2 of art. 18 of the constitution), to provide for taking private property for public use by the verdict of less than twelve jurors, yet they had a clear right to repeal the former law.

This they have done, and so far their action is valid. The result is that there is no valid mode provided for the compulsory taking of property in the circumstances of this case.

A party may waive the constitutional right to a jury of twelve persons (1st Abbott's Dig., p. 641, § 25), and so far, the act of 1865 may be carried into effect. The remedy for this state of things rests with the legislature, and not with the courts. If the legislature intended to repeal their former enactment, so far their action is valid. If they failed to substitute valid provisions, so far their action can not be enforced: 1 Mich. 118; 3 A. K. Marsh, 70.

5. But it is not conceded that the legislature had no constitutional right to make this change, because,

a. The second section of article 18 of the constitution was amended in 1859 (L. of 1859, p. 1102), declaring that it should not apply to highway commissioners in the official discharge of their duties as such.

b. In cities and villages the corporate authorities represent highway commissioners: L. of 1858, p. 38, etc. And this is in accordance with the charter of Detroit: Ch. VII.

c. Under this constitutional amendment the duties and powers of highway commissioners have been greatly changed: L. of 1861, 256; L. of 1865, 654.

d. It is submitted that, according to received principles of constitutional construction, this simplification of the system of opening streets may properly be applied to city authorities, acting as highway commissioners, and exercising the duties of such officers: 5 Mich. 257

This view is strengthened by the fact, that there is no necessity, in the absence of positive constitutional enactment, to compel the legislature in this class of cases to use a jury of twelve men.

Wm. Gray, for defendant in error:

1. It is contended that the resolution of the council did not state that the jury were to apportion and assess the damages, etc., upon the lots benefited.

No assessment could be made upon lots benefited by the opening of a street. The damages caused by such opening are paid by the city out of a general fund raised for that purpose: Chart., § 11, p. 74.

In the case of alleys, it is different. In these cases the damages are assessed upon and paid by the adjacent lots: Chart., § 12, p. 75.

Section two, relied upon by plaintiff in error, refers back to section one, which refers to the opening of both streets and alleys. In the case of an alley, the clause is properly inserted, as the jury do, in fact, assess, etc.; but it would be simply absurd to insert it in the case of a street, when the jury could not assess. The clause in question was intended to apply only to alleys.

2. The notices were served six days previous to the time appointed for the hearing, and this complies with the charter: § 3, p. 71.

3. The jurors were drawn in compliance with the charter, as revised in 1861: §§ 5, 6, 9.

In 1865 these sections were amended, by striking out the words "twenty-four" and "twelve," and inserting the words "twelve" and "six." The sections, thus amended, were re-enacted: L. of 1865, p. 680 and 681.

This act reads as an amendatory one, and embraces other legal and valid amendments to the charter. The last section of the act i...