City of Grand Rapids v. Burlingame

• Decision Date: 18 November 1892
• Citation: 93 Mich. 469,53 N.W. 620
• Court: Michigan Supreme Court
• Parties: CITY OF GRAND RAPIDS v. BURLINGAME, Judge.

53 N.W. 620

93 Mich. 469

CITY OF GRAND RAPIDS v. BURLINGAME, Judge.

Supreme Court of Michigan

November 18, 1892

Petition by the city of Grand Rapids for a mandamus to compel Edward A. Burlingame, as judge of the superior court, to proceed and hear the petition of the relator for the condemnation of all the rights of the Grandville Plank-Road Company in certain streets of the said city. Denied.

Wm. Wisner Taylor, City Atty., for relator. Bundy & Travis, for respondent.

PER CURIAM.

The relator filed in the superior court of Grand Rapids a petition for the condemnation of all the rights of the Grandville Plank-Road Company in certain of the streets and highways of the said city, in the petition described. Summons was issued to the defendant, requiring it to appear and answer. Defendant appeared specially, and on the 21st day of September the city attorney moved the court for an order directing the sheriff to write down the names of 24 disinterested freeholders of said city for the purpose of striking a jury therefrom. Defendant company by its attorney, filed objections to the court assuming or entertaining jurisdiction of the matter, for the following reasons: "(1) Because Act No. 36, Pub. Acts 1891, under which the proceedings are had, is unconstitutional and void in that it contravenes section 20, art. 4, of the constitution of this state, and gives no authority to the petitioner to either purchase or condemn the rights of the company. (2) Because, under the laws of the state, respondent is under obligation to keep and maintain five miles of road and cannot negotiate for the sale, or sell any part, of its franchise to reduce its length to less than five miles; and it appears by the petition that the respondent only has and maintains five miles of road. (3) Because the act does not in terms or by necessary implication repeal the provisions of the law under which respondent is required to keep and maintain five miles of road; and, if respondent should voluntarily sell any portion of its present road or franchises, such sale would effect a forfeiture of its right to take toll on such portion of its road as might remain after such sale." After hearing these objections the court refused to grant the order to strike the jury. This is a petition for mandamus to compel the said superior court to proceed in the matter under said petition in accordance with the terms of the act. The answer of the superior court admits the facts set up in the petition. The respondent is a toll-road company, having the right to maintain gates and collect tolls on certain streets and highways of the city of Grand Rapids, and upon a certain highway outside of said city. The portion sought to be condemned is about one half mile in length within said city limits, leaving it only four and one half miles of road which portion is entirely outside of the city. The respondent was organized under the plank-road act of 1851, (Laws 1851 No. 155.) By section 29 of that act (How. St. � 3624) it is provided that whenever any plank-road company shall have completed its road, or any five consecutive miles thereof, the said company may erect toll gates, and demand...