Hooper v. Bd. of Educ. of City of Detroit

• Decision Date: 28 June 1946
• Docket Number: Motion No. 51.
• Citation: 315 Mich. 202,23 N.W.2d 692
• Parties: HOOPER v. BOARD OF EDUCATION OF CITY OF DETROIT.
• Court: Michigan Supreme Court

315 Mich. 202

23 N.W.2d 692

HOOPER

v.BOARD OF EDUCATION OF CITY OF DETROIT.

Motion No. 51.

Supreme Court of Michigan.

June 28, 1946.

Appeal from Circuit Court, Wayne County, in Chancery; James E. chenot, judge.

Suit by Adeline M. Hooper against Board of Education of the City of Detroit, a public corporation, to restrain purchase by defendant of hotel property, fixtures and appurtenances at private sale. From a decree dismissing her complaint, plaintiff appeals.

Decree affirmed.

Before the Entire Bench.

Schmalzriedt, Frye, Granse & Frye, of Detroit, for appellant.

William E. Dowling, and Clarence E. Page, both of Detroit, for appellee.

BUTZEL, Chief Justice.

Adeline M. Hooper, plaintiff, a resident of the city of Detroit, Michigan, in a bill of complaint alleged that she resided in the Webster Hall Hotel (and that on behalf of herself and upwards of 570 other tenants she seeks to restrain the purchase of the hotel property and the fixtures and appurtenances at private sale to the Board of Education of the City of Detroit, defendant herein. The property consists of a very large hotel building opposite the campus of Wayne University, which is a part of the educational system owned and conducted by defendant. Plaintiff concedes that proper proceedings to condemn the property were brought in the recorder's court of the city of Detroit, and in which she and 570 tenants, or thereabouts, appeared and categorically denied that there was a public necessity for the taking of the property. While the condemnation proceedings were pending, defendant entered negotiations for a contract for the purchase of the property for $1,200,000, which amount defendant has available. After the bill of complaint was filed, defendant entered into further negotiations with a financial institution for the issuance and sale of self-liquidating revenue bonds in the amount of $2,000,000, which would be amply sufficient to pay the purchase price of the property and the cost of expensive remodeling and improving of the property so as to adapt it for the purposes of the university. There can be no question after reading the record that defendant has reason to believe it very necessary and essential to acquire the property for its purposes, and that the present tenants of the hotel may have considerable difficulty in obtaining suitable new living quarters because of the lack of housing facilities in the city of Detroit. On the other hand, the university in its attempt to take care of over 12,000 students, a large number of whom are returning veterans, and to participate in the national program to increase the number of trained nurses, has a pressing need for the property, as its present buildings are woefully inadequate.

The bill of complaint mainly stresses the claim that, as there is a condemnation suit pending in which the necessity of taking the property is controverted by the present tenants of the rooms of the hotel, the plaintiff and those on whose behalf she has filed the bill are entitled to their day in court in order to have the question of necessity determined. Plaintiff also claims that the ordinance adopted by defendant for the issuance of self-liquidating bonds is defective because of, what they claim, insufficient publication.

Plaintiff claims a right to sue both as a tenant and taxpayer. The defendant concedes that the purchase of the property by the city must be subject to such rights, if any, plaintiff and the other tenants may have obtained from the present owners of the hotel. Her right to sue as a taxpayer has not been questioned in the lower court. After the filing of the bill of complaint, in which many allegations were made on information and belief, a sworn answer was filed by defendant in which it categorically denies some of the charges made on information and belief, and, as to these charges, on motion to dismiss there is no presumption that they are true, inasmuch as the allegations to the contrary in the answer have not been controverted. Case v. City of Saginaw, 291 Mich. 130, 288 N.W. 357. A motion to dismiss the bill of complaint was made and some testimony taken. The trial judge entered a decree dismissing the bill of complaint, and plaintiff appeals. We shall discuss the main questions raised.

The first and main question stressed on appeal is whether defendant can purchase the property during the pendency of condemnation proceedings in which a question of necessity must be passed upon by a jury. The answer is unequivocally in the affirmative. Defendant is a State agency clothed with the power of eminent domain and as such has a right to discontinue condemnation proceedings any time before confirmation of the verdict of the jury. See In re Board of Education of Detroit, 242 Mich. 658, 219 N.W. 614, where condemnation proceedings were also brought, as in the instant case, under Act No. 149, Pub.Acts 1911, as amended, 1 Comp.Laws 1929, § 3763 et seq., Stat.Ann. § 8.11 et seq., which act permits the petitioning body to withdraw any property whenever such will not interfere with the substantial rights of the parties, or it may discontinue the condemnation proceedings before the confirmation of the verdict of the jury. And see In re Huron-Clinton Metropolitan Authority, 306 Mich. 373, 10 N.W.2d 920, where we permitted the withdrawal of several parcels, as well as the acceptance of some as a gift, and the purchase of other parcels without the determination of necessity. Plaintiff relies on In re Board of Education of City of Grand Rapids, 249 Mich. 550, 229 N.W. 470, in which condemnation proceedings were begun against three parcels of land....