Gen. Dev. Corp. v. City of Detroit

• Decision Date: 04 October 1948
• Docket Number: No. 47.,47.
• Citation: 33 N.W.2d 919,322 Mich. 495
• Parties: GENERAL DEVELOPMENT CORPORATION v. CITY OF DETROIT.
• Court: Michigan Supreme Court

322 Mich. 495

33 N.W.2d 919

GENERAL DEVELOPMENT CORPORATION

v.CITY OF DETROIT.

No. 47.

Supreme Court of Michigan.

Oct. 4, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Chester P. O'Hara, Judge.

Action by General Development Corporation against City of Detroit, a municipal corporation, to enjoin defendant from proceeding with a condemnation suit. From an order dismissing its complaint for failure to state a cause of action or grounds for equitable relief, plaintiff appeals.

Order affirmed.

Before the Entire Bench.

Leemon & Leemon, of Detroit, for plaintiff and appellant.

Raymond J. Kelly, Corp. Counsel, and Vance G. Ingalls, Asst. Corp. Counsel, both of Detroit, for defendant and appellee.

DETHMERS, Justice.

This is an action to enjoin defendant from proceeding with a condemnation suit. Plaintiff appeals from an order dismissing its bill of complaint for failure to state a cause of action or grounds for equitable relief.

In considering this appeal, all well pleaded facts in plaintiff's bill must be taken as true. On that basis the facts, as condensed in plaintiff's brief, must be considered to be as follows:

1. Defendant brought the condemnation proceedings to acquire land for the purpose of clearing the slums therefrom, under authority of Act No. 18, Pub.Acts 1933, Ex.Sess., as amended, Comp.Law Supp.1940, § 2607-1 et seq., Stat.Ann. and Stat.Ann.1947 Cum.Supp. § 5.3011 et seq.

2. Under authority of that act defendant acquired title to other lands in 1941 and 1943 for the avowed purpose of slum clearance and construction of low-cost public housing; thereafter defendant operated the properties for profit, with but little clearance of sub-standard dwellings and no construction of new dwellings thereon.

3. Defendant seeks to acquire the land here involved for the same purpose. Because of an acute housing shortage, clearance of slums therefrom is impossible now or within a reasonable time.

4. It is defendant's intention, as soon as conditions permit, to clear the slums from the land and thereafter sell it at its then market value of private persons.

Plaintiff's bill alleges that Act No. 250, Pub. Acts 1941, Comp.Laws Supp.1945, § 10135-201 et seq., Stat.Ann.1947 Cum.Supp. § 5.3058(1) et seq., provides for acquisition of slum areas and disposal thereof by cities, upon certain conditions, to private corporations for slum clearance and development and that included in such conditions is the provision that the city must be reimbursed by the corporation for all sums expended in the acquisition of the lands; that the provisions of the act are exclusive and its conditions mandatory; that a city may not acquire land for slum clearance under any other act and sell the same to private interests for less than the full cost to the city of its acquisition; that plaintiff, as a tax payer, is fearful that the unlawful action contemplated by the defendant in this connection will result in the imposition upon plaintiff of an illegal tax.

Whether the use for which land is sought to be acquired by condemnation is a public one is a judicial question. Board of Health v. Van Hoesen, 87 Mich. 533, 49 N.W. 894,14 L.R.A. 114;Detroit International Bridge Co. v. American Seed Co., 249 Mich. 289, 228 N.W. 791;Cleveland v. Detroit, 322 Mich. 172, 33 N.W.2d 747.

At the instance of a tax payer who would be adversely affected thereby, unlawful action by a municipality or action about to be taken by it which is lawful on its face but intended solely for an unlawful purpose, may be prevented by injunction. A petitioner need not wait until such action has been taken and the resultant damage to him accomplished. Bates v. City of Hastings, 145 Mich. 574, 108 N.W. 1005;Lake Superior Dist. Power Co. v. City of Bessemer, 288 Mich. 455, 285 N.W. 20;Wolgamood v. Village of Constantine, 292 Mich. 222, 290 N.W. 388;Barkely v. City of Detroit, 314 Mich. 404, 22 N.W.2d 835.

That a city's acquisition of land by condemnation for slum clearance is a taking for public use and that it is permissible under Act No. 18, Pub.Acts 1933, Ex.Sess., as amended, has been held and the constitutionality in that respect of that statute upheld in the cases of In re Brewster Street Housing Site, 291 Mich. 313, 289 N.W. 493, and In re Jeffries Homes Housing Project, 306 Mich. 638, 11 N.W.2d 272.

That the lands acquired by defendant in 1941 and 1943 for slum clearance purposes...