City of Detroit v. Oakland Circuit Judge

• Decision Date: 04 February 1927
• Docket Number: No. 136.,136.
• Citation: 237 Mich. 446,212 N.W. 207
• Parties: CITY OF DETROIT v. OAKLAND CIRCUIT JUDGE.
• Court: Michigan Supreme Court

237 Mich. 446

212 N.W. 207

CITY OF DETROIT

v.OAKLAND CIRCUIT JUDGE.

No. 136.

Supreme Court of Michigan.

Feb. 4, 1927.

Petition by the City of Detroit for a writ of mandamus to direct a vacation of an order of Glen C. Gillespie, Oakland Circuit Judge. Writ denied.

Argued before the Entire Bench.Arthur F. Lederle, Assistant Corporation Counsel, of Detroit (Charles P. O'Neil, Corporation Counsel, of Detroit, of counsel), for plaintiff.

Trowbridge, Lewis & Watkins, of Detroit, for respondent.

SNOW, J.

The city of Detroit owns by gift 65 acres of land two miles beyond its limits, in the city of Royal Oak, Oakland county. It is maintained as a zoological park, and is constantly being improved. To secure a better entrance to the park, the city, under Act No. 149, P. A. 1911, as amended by Act No. 37, P. A. 1925, instituted condemnation proceedings to acquire privately owned lands in Oakland county, to be used for such purpose. These proceedings were successfully resisted by the owners, the trial court, upon motion, entering an order dismissing the petition. They are here reviewed upon petition of plaintiff for mandamus directing a vacation of such order.

The right to condemn is claimed by the city to come from (1) its charter and the Home Rule Act; (2) the state Constitution.

1. Chapter 1, title 3, subdivision (u), of the charter empowers the city council--

‘to acquire by gift, grant, devise, bequest, or any other manner real or personal property, for public parks, grounds, boulevards, zoological gardens, cemeteries, public buildings, and other public purposes, whether such property is acquired directly or in trust, and whether such property is located within or without the corporate limits of the city of Detroit, or within or without the corporate limits of the county of Wayne; and to provide for the appropriation of such funds for the maintenance and upkeep of such property, so acquired, as the common council may set aside for said purpose.’

Assuming (without so holding) that this charter provision grants to the city the right to condemn property of the character in question, was not said provision enacted without authority, and therefore void?

We quote the city's claim as to its validity from the brief of counsel:

‘Although it is conceded by the petitioner that the Home Rule Bill, so-called, does not specifically grant the power to acquire parks outside the county in which it is situated, it is plain that it does specifically authorize cities to make provisions in their charter for exercising all municipal powers in the management and control of municipal property.

‘See subdivision (t), section 4, Act 279, Public Acts 1909, as amended (Home Rule Bill), which reads as follows:

‘Section 4. Each city may, in its charter, provide:

‘(t) For the exercise of all municipal powers in the management and control of municipal property in the administration of municipal government, whether such powers be expressly enumerated or not; for any act to advance the interest of the city, the good government and prosperity of the municipality and its inhabitants, and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concern subject to the Constitution and general laws of this state.’

Another provision of the Home Rule Bill is Act No. 353, P. A. 1921, amending section 4, by adding thereto section 4(a) as follows:

‘Each city may provide in its charter for the acquisition by gift of real or personal property made by grant, devise, bequest or in any other manner, for public parks, grounds, boulevards, zoological gardens, cemeteries, public buildings and other public purposes, whether made directly or in trust, and whether within or without its corporate limits or within or without the corporate limits of the county in which such city is located. * * *’

We are unimpressed with the suggestion that either of these provisions of the Home Rule Act just referred to confers upon a city authority to provide by its charter the right to secure for park purposes by eminent domain (as is here attempted) land outside of its corporate limits and the county in which it is located. It is clear that the charter embraces a much greater scope that does the statute last quoted. The statute applies to an acquisition by gift only, while the charter applies to property acquired in any manner. The city, in the enactment of this provision of its charter, clearly acted without legislative authority.

2. Article 8, § 22, of the state Constitution is as follows:

‘Any city or village may acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hospitals, almshouses and all works which involve the public health or safety.’

It is claimed by the city that this provision is self-executing, and that it acquires rights and powers directly from it without any enabling enactments of the Legislature.

It is certain that this section of the Constitution gives to cities and villages the right to own, establish, and maintain parks outside of the corporate limits. But the legislative power is vested by the Constitution in the Legislature, which maintains general control over cities and which was directed by the Constitution to provide by a general law for the incorporation of cities, under which the electors were given authority to frame, adopt, and amend their charters, subject to the Constitution and the general laws of the state. Sections 20 and 21, art. 8.

Discussing the constitutional provisions relative to cities and villages (article 8, §§ 20 to 29), Mr. Justice Stone has this to say:

‘With regard to the subject we are considering, the impressive thing about these constitutional provisions is that they recognize and affirm the theory that cities own their origin and their powers to the Legislature. And while cities may refer power to do some things, as, for example, power to acquire certain public works, directly to some of these constitutional provisions, it must be admitted that all of these provisions should be considered with reference to the fact that legislative power is vested in the Legislature and that the Constitution recognizes, as former Constitutions have recognized, the general control of the Legislature over cities. That the legislative power ought to be exercised in such manner as to preserve the right of local self-government is a doctrine which in application in no way modifies or qualifies the idea of the general legislative...