Detroit Real Estate Inv. Co. v. Frazer

• Decision Date: 07 July 1904
• Citation: 137 Mich. 108,100 N.W. 271
• Court: Michigan Supreme Court
• Parties: DETROIT REAL ESTATE INV. CO., Limited, et al. v. FRAZER, Circuit Judge.

100 N.W. 271

137 Mich. 108

DETROIT REAL ESTATE INV. CO., Limited, et al. v. FRAZER, Circuit Judge.

Supreme Court of Michigan

July 7, 1904

Mandamus by the Detroit Real Estate Investment Company, Limited, and others, to compel Robert E. Frazer, as Wayne circuit judge to hear an application for the vacation of a street. Writ denied.

A. B Hall, for respondent.

HOOKER J.

The annexed plat shows the ground affected by the original application, which was a petition addressed to the circuit court for the county of Wayne to vacate Bancroft avenue, in the city of Detroit:

RPT.CC.1904000817.00010

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This petition came on to be heard in the circuit court, and the petitioners were in attendance with witnesses prepared to make proof in support of their petition. Counsel for the city stated orally to the court that the common council of said city had, some time before the filing of this petition, passed a resolution vacating said Bancroft avenue upon certain conditions, and thereupon the court adjourned the hearing, and at a later date filed an opinion, of which the following is a copy:

'In the Circuit Court for the County of Wayne, in Chancery. Petition of the Detroit Real Estate and Investment Company, Limited, Kate D. Allen, and George W. Radford for Vacating Bancroft Avenue. The claim in this petition is that Bancroft avenue ought to be vacated, for certain reasons. It appears to my satisfaction that this matter has already been presented to the common council, and that they ordered that Bancroft avenue, upon certain conditions, might be vacated. The law, as I understand it, permits a circuit court to interfere with the proceedings, and even set them aside, and act upon its own opinion as to the true merits of the case. I am satisfied that the conditions imposed by the common council are correct, and ought to be complied with, and I decline to interfere with their proceedings. I think that the determination of the common council is correct, and ought to be enforced. R. E. Frazer, Circuit Judge. Feb. 5, 1904.'

Thereupon the petitioners applied to this court for a mandamus to compel the circuit judge to proceed and hear the application upon the proofs offered by petitioners, and such other proof as should be offered. The answer of the circuit judge states that 'the petition filed herein under section 3376 of the Compiled Laws of 1897 was denied for the reason that the granting or denying of such petition, in my opinion, lies in the discretion of the circuit court, and as the charter of the city of Detroit gives co-ordinate jurisdiction to the common council of the city of Detroit in the matter of vacating streets, and as the said common council had already passed upon this very question, it was not deemed advisable to interfere with the disposition of this case by that body.'

It seems to be conceded that the council and the courts have...