Hendershott v. Rogers

• Decision Date: 03 January 1927
• Docket Number: No. 140.,140.
• Citation: 237 Mich. 338,211 N.W. 905
• Parties: HENDERSHOTT v. ROGERS, State Highway Com'r.
• Court: Michigan Supreme Court

237 Mich. 338

211 N.W. 905

HENDERSHOTT

v.ROGERS, State Highway Com'r.

No. 140.

Supreme Court of Michigan.

Jan 3, 1927.

Appeal from Circuit Court, Jackson County, in Chancery; James A. Parkinson, Judge.

Suit by Charles A. Hendershott against Frank F. Rogers, State Highway Commissioner. Decree dismissing the bill, and plaintiff appeals. Reversed.

Argued before the Entire Bench.

Snow and Fellows, JJ., dissenting.

Elvin Swarthout, of Grand Rapids, for appellant.

Andrew B. Dougherty, Atty. Gen., and Victor Spike, Asst. Atty. Gen., for appellee.

CLARK, J.

To reduce a curve in state trunk line highway 50, in Jackson county, defendant, state highway commissioner, sought to take land of plaintiff pursuant to the provisions of Act No. 352 of the Public Acts of 1925, entitled ‘An act to provide for the purchase and condemnation of private property for public highway purposes.’

Defendant determined conclusively the necessity of taking the property without giving the plaintiff notice of the purposed determination and without affording him thereon a hearing, an opportunity to defend, and in this regard defendant followed, substantially, the provisions of the act, and this feature of the act plaintiff contends is unconstitutional.

There is no criticism of the machinery set up by the act for determining compensation and review thereof, but plaintiff insists that, because of the peculiar language of the state Constitution, necessity, like compensation, is a judicial question, and that it may not be determined without due process of law, giving the landowner notice, hearing, opportunity to defend.

Defendant's position is that necessity is legislative, that the Legislature may find it, or may delegate the power, and, the question being legislative, the landowner is not entitled thereon to notice, hearing, or opportunity to defend.

Plaintiff's bill for injunction was dismissed. He has appealed.

The power of eminent domain is inherent in sovereignty. It is in the state without recognition in the Constitution, but its exercise is subject to any restrictions or limitations found therein. Loomis v. Hartz, 165 Mich. 662, 131 N. W. 85.

It was said in Miss. & R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206:

‘The right of eminent domain-that is, the right to take private property for public uses-appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. The clause found in the Constitutions of the several states providing for just compensation for property taken is a mere limitation upon the exercise of the right. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the Legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. But notwithstanding the right is one that appertains to severeignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance. If that inquiry take the form of a proceeding before the courts between parties-the owners of the land on the one side, and the company seeking the appropriation on the other-there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of the state.’

The state Constitution of 1835 contained the following (article 1, § 19): ‘The property of no person shall be taken for public use, without just compensation therefor.’ This is substantially the language of the like provision of the Fifth Amendment of the federal Constitution, and of the Constitutions of nearly all of the states.

Such constitutional limitation of the exercise of the power of eminent domain relates to one matter, compensation. It offers no restriction respecting the determining of necessity of taking private property for public use. It is well settled that under such provision the question of compensation is judicial; but that the question of necessity is legislative, and the Legislature may determine it or it may delegate the power to do so.

We quote from Backus v. Fort Street Union Depot Co., 169 U. S. 557, 18 S. Ct. 445, 42 L. Ed. 853:

‘In many states the question of necessity is never submitted to the jury which passes upon the question of compensation. It is either settled affirmatively by the Legislature or left to the judgment of the corporation invested with the right to take property by condemnation. The question of necessity is not one of a judicial character, but rather one for determination by the lawmaking branch of the government.’

If the quoted section of our Constitution of 1835 had persisted without modification to and in our last Constitution, that of 1908, this opinion might end here in affirmance of the decree. But important changes have been made and we consider them.

We quote section 2, art. 18, as amended, state Constitution of 1850:

‘When private property is taken for the use or benefit of the public, the necessity for using such property and the just compensation to be made therefor, except when to be made by the state, shall be ascertained by a jury of twelve freeholders, residing in the vicinity of such property, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law: Provided, the foregoing provision shall in no case be construed to apply to the action of commissioners of highways in the official discharge of their duty as highway commissioners.’

And section 1 and section 2, art. 13, Const. of 1908:

‘Section 1. Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law.’

‘Section 2. When private property is taken for the use or benefit of the public, the necessity for using such property and the just compensation to be made therefor, except when to be made by the state, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law: Provided, that the foregoing provision shall not be construed to apply to the action of commissioners of highways or road commissioners in the official discharge of their duties.’

Section 2, art. 18, as amended, Constitution of 1950, contained two exceptions, namely, when the condemning party was either the state or a highway commissioner. See following cases relative to the proviso of said section and referring also to other sections of said Constitution: Campau v. City of Detroit, 14 Mich. 276;People v. Highway Commissioners, 15 Mich. 347;Paul v. City of Detroit, 32 Mich. 108;Truax v. Sterling, 74 Mich. 160, 41 N. W. 885. But under such section, including its proviso, it was the duty of a highway commissioner to make determination of both necessity and compensation. Truax v. Sterling, supra.

But section 1, art. 13, of the Constitution of 1908, is all-inclusive, has no exception, and imposes both of said restrictions of necessity and compensation in every case where it is sought to take private property for public use.

Section 2, art. 13, of the Constitution of 1908, provides of how necessity and compensation are to be determined, requires that it be done by a jury or by commissioners, except when the state, a highway commissioner, or a road commissioner is the condemning party.

With these extensions and differences noted, it may be said that section 2, art. 18, Const. of 1850, and sections 1 and 2, art. 13, Const. of 1908, are in principle substantially the same. Loomis v. Hartz, supra. For convenience we quote again the section from our Constitution of 1835: ‘The property of no person shall be taken for public use, without just compensation therefor.’ The change in the later Constitutions from the provisions of the Constitution of 1835, here important, is, in substance, the addition of the words, ‘without the necessity therefor being first determined.’ Defendant says that, notwithstanding the added words, the question of necessity remains purely legislative. If so, why add the words at all. Under the provision of the Constitution, quoted above, of 1835, and like provisions in the federal Constitution and in many state Constitutions, it was well settled that necessity was a question for legislative determination. If the makers of our later Constitutions intended no change in that regard they would not have added the words. They did not intend an idle thing. They added the words to make necessity like compensation a judicial question, in respect of which there should be due process of law, notice thereof to the landowner, hearing, and opportunity to defend, as well upon the question of necessity as upon the question of compensation. We quote from Paul v. City of Detroit, 32 Mich. 108:

‘But in all cases, whether private property is to pay damages or not, the necessity of the use, and the compensation for the property taken, must be found by the jury, and no legislative or municipal authority can determine either. It is made by the Constitution a purely judicial inquiry, to be made by a jury of twelve freeholders, and determined by their unbiased and impartial verdict.’

And see People v. Village of Brighton, 20 Mich. 57;People ex rel. Ayres v. Richards, 38 Mich. 214;Campau v. City of Detroit, 14 Mich. 276;Horton v. City of Grand Haven, 24 Mich. 465;Village of Hamtramck v. Smions, 201 Mich. 458, 167 N. W. 973.

We quote again Mr. Justice Campbell in the Paul Case:

‘This provision is not found in Constitutions generally, and was never known in Michigan until the adoption of the constitution...