Chamberlin v. Detroit Edison Co., Docket No. 3613

Citation14 Mich.App. 565,165 N.W.2d 845
Decision Date02 December 1968
Docket NumberDocket No. 3613,No. 2,2
PartiesWallace G. CHAMBERLIN et al., Plaintiffs-Appellants, v. The DETROIT EDISON COMPANY, a New York corporation, Defendant-Appellee
CourtCourt of Appeal of Michigan (US)

Lawrence D. Heitsch, Darden, Neef & Heitsch, Detroit, for appellants.

Fischer, Sprague, Franklin & Ford, Detroit, for appellee.

Before McGREGOR, P.J., and LEVIN and QUINN, JJ.

LEVIN, Judge.

Detroit Edison commenced condemnation proceedings in probate court pursuant to C.L.1948, § 486.251 Et seq. (Stat.Ann. § 22.1671 Et seq.), hereafter the 'public utility condemnation statute.' Thereafter this action was filed by the plaintiffs who are owners of property sought to be so condemned. Plaintiffs claim the public utility condemnation statute violates provisions of Michigan's 1963 constitution and seek an injunction restraining Detroit Edison from continuing the probate court condemnation proceedings. They appeal a judgment denying them relief.

The 1908 constitution required that both necessity and just compensation be 'ascertained by a jury of 12 freeholders residing in the vicinity of such property, or by not less than 3 commissioners appointed by a court of records, as shall be prescribed by law.' Const.1908, art. 13, § 2. Under the 1908 Constitution the jury or commissioners were judges of the law and the facts, which led our courts to declare that condemnation proceedings were inquisitorial in nature. In re Edward J. Jeffries Homes Housing Project (Appeal of Collins) (1943), 306 Mich. 638, 645, 11 N.W.2d 272; People on Behalf of State Board of Education v. von Zellen (1965), 1 Mich.App. 147, 154, 134 N.W.2d 828.

All the 1908 constitutional provisions concerning the taking of private property for public use were replaced by 2 sentences in the 1963 constitution:

'Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.' Const. 1963, art. 10, § 2.

While the gist of the first sentence, 'just compensation shall be paid,' simply restated old State 1 and controlling Federal constitutional law, 2 important changes were made:

--There was eliminated the 1908 constitutional provision requiring that necessity and compensation be determined by a 12-man jury or 3 commissioners.

--Compensation must now be determined in a court of record.

-- There is no statement in the 1963 constitution regarding the manner in which necessity will be determined.

Plaintiffs assert that because of these changes in Michigan's constitution the public utility condemnation statute, which was enacted before these constitutional changes were made, is no longer constitutional.

Under the public utility condemnation statute 3 commissioners appointed by a probate judge determine necessity and compensation (C.L.1948, § 486.252c). The statute was passed at a time when commissioners decided both questions of law and fact. However, the 'court of record' provision in the 1963 constitution requires that proceedings for the determination of compensation follow a course appropriate for proceedings in a court of record. State Highway Commissioner v. Lindow, In re FAI--75 (1966), 4 Mich.App. 496, 501, 145 N.W.2d 223. Plaintiffs are, therefore, entirely correct that the statute as and when passed contemplated a kind of proceeding inconsistent with the court of record requirement.

Recognizing the need to revise existing procedures, the Michigan Supreme Court sought to adapt the condemnation statutes in force at the time of adoption of the 1963 constitution to the new constitutional requirement. On November 3, 1964 (374 Mich. XV) it revised GCR 1963, 516.5 to read:

'Judges of courts of record in which condemnation proceedings have been instituted shall preside over the proceedings in person and shall instruct the jury or commissioners on questions of law and admissibility of evidence.'

But, say the plaintiffs, (a) the general court rules of 1963 do not apply to probate courts, (b) the procedure contemplated by the public utility condemnation statute is inquisitorial rather than a 'regular' judicial proceeding in a court of record, (c) the property owner is constitutionally entitled to a trial by jury, which right is not satisfied by a proceeding before 3 commissioners, (d) the determination of necessity is now 'legislative,' and the legislature may not constitutionally impose on the courts the nonjudicial, legislative function of determining necessity and (e) equal protection of the laws is denied by the public utility condemnation statute because the procedure established therein is unfavorable to property owners by comparison with the procedure which governs condemnation by other condemning authorities, for example the State highway department, in which latter case, various rights, including trial by jury, are guaranteed. C.L.1948, § 213.361 Et seq., as amended (Stat.Ann.1958 Rev. § 8.261(1) Et seq., as amended).

For reasons about to be stated, we have concluded that the trial judge correctly denied the plaintiffs' relief and affirm the order dismissing their complaint.

The general court rules provide that 'rules which are by their terms applicable to other courts shall apply to those courts.' GCR 1963, 11.2. Thus, even though the general court rules do not generally apply to the probate court, a particular rule will so apply if by its terms it is made applicable to that court. The apparent reason for making rule 516.5 applicable to 'judges Of courts of record,' not just to 'judges,' was to make that rule applicable to court of record judges other than circuit and recorder's judges. The probate court is a court of record. Const.1963, art. 6, § 19. Rule 516.5 is applicable to condemnation proceedings in the probate court.

Although the public utility condemnation statute when enacted contemplated an inquisitorial proceeding antithetical to the court of record requirement established in the 1963 constitution, that aspect of the relevant statutory procedure was modified by the court rule which requires the judge in all condemnation proceedings, including, as we have held, those conducted by probate judges, to preside over and to instruct the jury or commissioners on questions of law and admissibility of evidence.

The court rule harmonizes procedures established in legislation adopted under the 1908 constitution with the 1963 constitution's court of record requirement. We see no reason why this cannot be done by judicial adaptation of the old to the new. We, therefore, reject plaintiffs' argument that until the legislature itself adjusts the old procedure to the new constitutional requirement, as it has now done for highway condemnation (P.A.1967, No. 206), but not as to public utility condemnation, there are no valid means by which private property can be condemned for public use.

In United States Gypsum Co. v. Kent Circuit Judge (1908), 150 Mich. 668, 673, 114 N.W. 666, 668, the Court declared that 'proceedings to condemn land are special and summary in character and, while subject to judicial review and supervision for certain purposes, are not judicial proceedings.' But in Hendershott v. Rogers (1927), 237 Mich. 338, 348, 211 N.W. 905, 908, the Court declared that the condemning authority 'must treat both necessity and compensation as judicial questions.' These 2 cases dealt with condemnation procedures under the 1850 and 1908 constitutions.

Plaintiffs cite the United States Gypsum Co. case in support of their contention that procedures enacted prior to adoption of the 1963 constitution are not and cannot be judicial procedures. The defendant relies on Hendershott, Supra, and Campany v. City of Detroit (1923), 225 Mich. 519, 523, 196 N.W. 527, 32 A.L.R. 91 (see footnote 3) as opposing authority.

Upon examination of the reports in the cited cases it appears that the statements in Gypsum, and in earlier and later cases, to the effect that condemnation proceedings are not judicial proceedings were made to explain why procedures generally applicable in judicial proceedings need not be followed in condemnation proceedings. 3

Hendershott described condemnation proceedings as 'judicial' to reconcile the maxim that the 'question of compensation is judicial' with the then Michigan constitutional requirement that necessity be determined in the same manner as compensation. See Hendershott, Supra, 237 Mich. pp. 341, 344, 211 N.W. 905. Describing Michigan's then procedure as Judicial also served to distinguish our then procedure from that of most other States which left to the Legislature the decision on the manner in which necessity shall be determined. 4

Whether a particular condemnation procedure enacted under the 1850 and 1908 constitutions as modified by GCR 1963, 516.5 is consistent with the 1963 constitution's court of record requirement should be determined by comparing the procedure under attack with the court of record requirement and not by comparing it with judicial statements made in other contexts.

Plaintiffs advance one specific objection to the procedure established under the public utility condemnation statute. They assert that the property owner is entitled to a jury trial and that the determination of compensation by 3 commissioners is inconsistent with proceedings in a court of record.

The right of jury trial constitutionally protected by Const.1963, art. 1, § 14, is the 'right to a trial by jury as it had become known to the previous jurisprudence of the state.' Swart v. Kimball (1880), 43 Mich. 443, 448, 5 N.W. 635, 637. See, also, Conservation Department v. Brown (1952), 335 Mich. 343, 346, 55 N.W.2d 859. We doubt whether there even was a right of trial by jury in a case such as this at common law which could 'remain' when the constitution of...

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